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2013 DIGILAW 477 (BOM)

Rukhmaji Dnyanoba Hakke v. Collector, Latur

2013-02-28

S.V.GANGAPURWALA

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JUDGMENT S. V. GANGAPURWALA, J. 1. The petitioner contested election from Ward No. 2 and Ward No. 3 of Gram Panchayat Mashnerwadi. The petitioner was declared elected as a member of Gram Panchayat from both wards i. e. Ward No. 2 and Ward No. 3 on 21.10.2012. The results of the said election were published in the official Gazette. The petitioner failed to tender his resignation from one seat within 7 days. Vide order dated 02nd November, 2012 the Collector declared both the seats vacant. 2. Shri Nimbalkar, the learned counsel for the petitioner eruditely contends that no opportunity of hearing was given to the petitioner before such an order was passed by the Collector. The learned counsel submits that when the consequences to the extent of unseating the elected candidate results, it was imperative for the authorities to issue notice and hear the petitioner before passing the impugned order. The petitioner’s seat would not become vacant only on the ground that the resignation of one seat has not been submitted within seven days. According to the learned counsel, though the provisions of the statue and rules do not contemplate issuance of notice and hearing the petitioner, still taking into account the consequences that are contemplated the observance of principles of natural justice are to be impliedly read. The learned counsel submits that in other statute where similar provisions are made, the notice is contemplated. The learned counsel relies on the provisions of Sec. 73(ff) and 78 of the Maharashtra Cooperative Societies Act, so also judgment of the Full Bench of this Court in a case of Narayan Gujabrao Boyar Vs. Yeotmal Zilla Parishad Karmachari Sahkari Path Sanstha Maryadit Yeotmal reported in 2009(6) Mh. L. J. 500 . The learned counsel further submits that, in similar circumstances the provision of notice is contemplated under the Bombay Provincial Municipal Corporation Act and more particularly under Sub Rule 2(m) of Rule 9 of the said rules. 3. Shri Bharaswadkar, the learned counsel for the respondent supports the order and submits that the provisions of the statute do not require any issuance of notice before passing the order. 4. Before I proceed to deal with the contentions canvassed by the learned counsel, it would be appropriate to refer to the relevant provisions. THE BOMBAY VILLAGE PANCHAYAT ACT 13A. Vacation of seats. 4. Before I proceed to deal with the contentions canvassed by the learned counsel, it would be appropriate to refer to the relevant provisions. THE BOMBAY VILLAGE PANCHAYAT ACT 13A. Vacation of seats. If a person is elected to more than one seat in a Village Panchayat, then, unless within the prescribed time he resigns all but one of the seats by notice in writing signed by him and addressed to the State Election Commission or any officer authorised by it in this behalf, all the seats shall become vacant. 5. Rule 41A of the said Rules reads as under : BOMBAY VILLAGE PANCHAYAT ELECTION RULES, 1959 41A Multiple election .If a person is elected to more than one seat in a village panchayat, the time within which he may resign all but one of the seats under Section 13A shall be seven days from the date of the posting of the result of the election by the Returning Officer under Rule 36. 6. It is not disputed that the petitioner was elected from Ward No. 2 and Ward No. 3. The provisions of section 13A of the said Act mandates that if a person is elected to more than one seat in the Village Panchayat, then unless he resigns from all but one of the seats, within the prescribed time by notice in writing and addressed to the State Election Commission or any Officer Authorized by it in this behalf all the seats shall become 'vacant'. Rule 41A of the said Rules lays down the period within which the person has to elect the seat which he would like to retain. As per the said rules within seven days from the date of the posting of the result of the election by the Returning Officer under Rule 46, the person has to elect which seat he would retain and has to resign from the other seat. 7. In the present case, it is not disputed that the petitioner was posted with the result of election on 22 nd October, 2012. It is also not disputed that the petitioner has not tendered his resignation from one seat within seven days and the Collector passed the order declaring both the seats to be vacant on 22nd November, 2012 i.e. after lapse of one month from the date of the posting of the result of election to the petitioner. 8. It is also not disputed that the petitioner has not tendered his resignation from one seat within seven days and the Collector passed the order declaring both the seats to be vacant on 22nd November, 2012 i.e. after lapse of one month from the date of the posting of the result of election to the petitioner. 8. Reading the provisions of the Statute and the Rules conjointly, it nowhere prescribes issuance of notice by the authority to the petitioner. On the contrary Sec. 13A of the said Act and Rule 41A of the said Rules impose a duty on the petitioner to tender his resignation of all seats except one within a period of seven days. When a statute casts an obligation on the petitioner to tender his resignation within a particular period and the statute also nowhere lays down a mandate to be followed by the authority of issuing notice to the petitioner, in such an event the arguments of Shri Nimbalkar, the learned counsel for the petitioner that the same should be read into said provisions cannot be accepted. The same would be supplanting the statute. The provision of Sec. 13A is self operative. The election law will have to be construed strictly. The Court would not read into a provision, nor insert any word in the statute, which statute has consciously excluded. 9. Sec. 13A of the Panchayat Act mandates that, on the lapse of period as prescribed all the seats shall become vacant. As such, by the operation of law on the lapse of seven days of the posting of the result of election the seat would become vacant, if the candidate does not tender his resignation for all the remaining seats except one. As far as the term "vacant" as appearing in Sec. 13A is concerned, it is a consequence of the fact that a person cannot continue to hold the seat. The term must be understood in the context in which it is used. The provisions of Sec. 13A nowhere contemplates any adjudication. On omission of the person to resign from all but one seat within stipulated period by operation of law all seats become vacant. 10. In fact the Collector while passing the order of declaring both seats vacant has only performed a ministerial act. It is by operation of Sec. 13A of the statute both seats became vacant axiomatically. On omission of the person to resign from all but one seat within stipulated period by operation of law all seats become vacant. 10. In fact the Collector while passing the order of declaring both seats vacant has only performed a ministerial act. It is by operation of Sec. 13A of the statute both seats became vacant axiomatically. The Collector by passing an order only took cognizance of the fact that both the seats stood vacant, as petitioner within the period of 7 days did not tender his resignation from one seat or did not opt for retaining a particular seat. 11. The provisions of the other statute cannot be imported while construing section 13A of the Panchayat Act. The Bombay Provincial Municipal Corporation Act lays down a procedure for declaring seat vacant if option to retain a particular seat is not exercised. However, such procedure has been excluded under the Bombay Village Panchayat Act. The Panchayat Act is a self contained Code. 12. In view of the above conspectus of the matter, the order passed by the Collector need no interference. As such, writ petition is dismissed, however, with no order as to costs.