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2014 DIGILAW 382 (BOM)

Balasaheb Kashinath Tambe v. Nanasaheb Janardhan Khade

2014-02-13

S.V.GANGAPURWALA

body2014
JUDGMENT Per Court: 1. The petitioners are elected as members of the Gram Panchayat Lakh. 2. The respondent No. 1 filed a complaint bearing dispute Application No. 82/2011 and 81/2011 before the Additional Collector seeking disqualification of the petitioners for not submitting the election expenses within one month as contemplated U/Sec. 14-B of the Bombay Village Panchayat Act (hereinafter called as "Panchayat Act" for the sake of brevity). The Collector, allowed the said dispute and disqualified the petitioners on the ground of non submission of particulars of expenses within one month. The petitioners filed appeals before the Divisional Commissioner. The Divisional Commissioner dismissed the said appeals. Aggrieved thereby present petition. 3. Mr. Karpe, the learned counsel for petitioners in his usual lucid manner submits that, the Additional Collector did not get the jurisdiction to entertain the dispute U/Sec. 14-B read with Sec. 14(1-J)(4) of the Panchayat Act. The powers under the said sections could only be exercised by the State Election Commissioner and not the Collector. As the proceedings are without jurisdiction, the orders passed therein are nullity. According to the learned counsel, the authorities have not considered the said aspect. Sec. 182 of the Panchayat Act deals with delegation of powers. The State Government can delegate its powers only to the Commissioner. The State Government does not have any jurisdiction to delegate the powers to the Collector. U/Sec. 10-A of the Panchayat Act, the authority given to the State Election Commissioner to delegate its powers to any officer not below the rank of Tahsildar would be subject to Subsection 1 of Sec. 10-A of the Panchayat Act. Sec. 10-A(2) cannot be read in isolation and same is controlled by sub Sec. 1 of Sec. 10-A of the Panchayat Act. Only powers of superintendence, direction and control of preparation of electoral roll and conducting of all elections of panchayat can be delegated by the State Election Commission to the Collector. 4. The learned counsel further contends that, within the stipulated period, the petitioners had submitted the accounts of expenses incurred in the election within one month. The petitioners had given the same to the respondent No. 1 to submit it before the competent authority. However, the respondent No. 1 played fraud and did not submit the same. Specific contention has been raised in this regard before the authorities, but, the same has not been considered. The petitioners had given the same to the respondent No. 1 to submit it before the competent authority. However, the respondent No. 1 played fraud and did not submit the same. Specific contention has been raised in this regard before the authorities, but, the same has not been considered. According to the learned counsel the authorities have exercised jurisdiction not vested in them and have arrived at erroneous conclusion. The details have been given about the manner in which particulars of expenses were sought to be submitted with the authority and the manner in which the respondent No. 1 has played fraud. The learned counsel further submits that again for second time petitioners submitted particulars of expenses. 5. Mr. Sagade, the learned counsel for respondent Nos. 1 and 2 supports the judgment. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Rehab Housing Pvt. Ltd. Mumbai Vs. Vishwanath Pandurang Patil reported in 2013(6) Mh. L. J. 417. 6. The learned A. G. P. has produced the copy of the notification wherein the State Election Commission has delegated the powers to the Collector to consider the disqualification of the candidates who have not submitted the election expenses to the Collector. The same is taken on record. 7. Before I advert to the submissions canvassed by learned counsel for respective parties, it would be appropriate to refer to the relevant provisions: THE BOMBAY VILLAGE PANCHAYAT ACT. 1. ......... 2. ......... 10A State Election Commission. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and conduct of, all elections to the Panchayat shall vest in the State Election Commissioner. (2) The State Election Commissioner, may, by order, delegate any of his powers and functions to any office of the Commission or any officer of the State Government not below the rank of Tahsildar. (3) All the officers and members of the staff appointed or deployed for preparation of electoral rolls and conduct of election of Panchayats under this Act or the rules shall function under the superintendence, direction and control of the State Election Commissioner. (4) Notwithstanding anything contained in this Act and the rules, the Commission may issue such special or general orders or directions which may not be inconsistent with the provisions of the Act for fair and free elections. 14. Disqualifications : 1. ....... (4) Notwithstanding anything contained in this Act and the rules, the Commission may issue such special or general orders or directions which may not be inconsistent with the provisions of the Act for fair and free elections. 14. Disqualifications : 1. ....... (a) ........ (b) ....... (j) has voluntarily acquired the citizen ship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; or (j-1) ........ ....... [(j-4) has been disqualified by the State Election Commission under section 14B; or] 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 expenses within the time and in the manner required by the State Election Commission, and (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 shall be disqualified for being a member of panchayat or for contesting an election for being member for a period of five years from the date of the order. (2) The State Election Commission may, for reasons to be recorded, remove any disqualification under sub-section (1) or reduce the period of any such disqualification. 182. Delegation of powers. (1) The State Government may, by notification in the Official Gazette, authorize the Commissioner or any other officer to exercise any of the powers which may be exercised by the State Government under this Act. (2) ....... (3) ....... (4) Subject to the general or special orders of the State Government, the Commissioner or Collector may delegate to an officer not below the rank of Mamlatdar, Tahsildar, Naib Tahsildar or Mahalkari, powers exercised by the Commissioner, or as the case may be, the Collector under this Act. (5) Subject to the general or special orders of the State Government, the Chief Executive Officer may delegate to any officer working under a Zilla Parishad all or any of the powers exercisable by him under this Act.] 8. The State Election Commission vide notification published in official Gazette dated 19.11.2010 has delegated its powers U/Sec. 14B(1) of the Panchayat Act to the concerned Collector. 9. The State Election Commission vide notification published in official Gazette dated 19.11.2010 has delegated its powers U/Sec. 14B(1) of the Panchayat Act to the concerned Collector. 9. In the present case Sec. 182 of the Panchayat Act would not be relevant, as it deals with the powers of the State Government and other authorities under the Act to delegate its powers. 10. Delegation does not imply parting with powers by the person who delegates, but rather confers an authority to do certain things which otherwise the person would have to do himself. 11. In the present matter the authority of the State Election Commission to delegate its powers is relevant. Sub Section 1 of Sec. 10-A of the Panchayat Act gives the authority to the State Election Commissioner to control, direct and superintend the preparation of the electoral roles. Sub Section 4 of Sec. 10-A also empowers the commission to issue such special or general orders or direction, which may not be inconsistent with the provisions of the Act for fair and free elections. Sec. 14B of the Panchayat Act is amended and introduced subsequently in the year 2010. Whereas Sec. 10A of the Panchayat Act is incorporated in the year 1994. The powers of delegation are bestowed upon the State Election Commission under Sec. 10A(2). Though Sec. 14B of the Panchayat Act is introduced subsequently by way of an amendment, the same would not make any difference. An amendment when introduced becomes an integral part of original statute. Different provisions of the same statute will have to be read in harmony. The words used in original statute should be presumed to be used in the same sense in the amended portion. Sec. 14-B gives powers to the State Election Commission to disqualify the candidate for not submitting the election expenses in time. The State Election Commission possesses the authority and power to disqualify any person from being a member of panchayat who has not submitted the election expenses within the stipulated period. The State Election Commission is bestowed with the authority of delegation under sub Section 2 of Sec. 10A. The said provision does not lay down any restrictions on the authority of State Election Commissioner to delegate its powers. The State Election Commission is bestowed with the authority of delegation under sub Section 2 of Sec. 10A. The said provision does not lay down any restrictions on the authority of State Election Commissioner to delegate its powers. Reading said provision, it is manifest that, the powers of the State Election Commissioner to delegate any of his powers and function are unfettered and are without any reservation and qualification. Sec. 10-A(2) of the Panchayat Act empowers the State Election Commission to delegate any of its powers and functions to any officer, meaning thereby that even powers U/Sec. 14B can be delegated. When the provision is unambiguous, then the literal interpretation is the rule. In view of powers delegated to him, the Collector is acting on behalf of State Election Commission while disqualifying the petitioner U/Sec. 14B of the Panchayt Act. In view of that, it cannot be said that the order passed by the Collector disqualifying petitioner for non submission of election expenses is without jurisdiction or authority. 12. The theory put forth by the petitioner of having submitted the election expenses through the respondent No. 1 cannot be digested in as much as the respondent No. 1 was the candidate who had contested the election against the petitioners. It is the respondent No. 1 who has filed the complaint against the petitioners. It is highly improbable that the petitioners would give the details of the election expenses for submission before the authority in the hands of rival candidate. Both the authorities have rightly considered the said aspect. 13. Considering the above, the writ petition being sans merit is dismissed. No costs.