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2019 DIGILAW 1511 (BOM)

Kalpana Bapurao Thakare v. Collector, Washim

2019-07-01

A.S.CHANDURKAR

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JUDGMENT : A.S. Chandurkar, J. 1. Rule. Heard finally with consent of counsel for the parties. 2. The petitioner who had been elected as Sarpanch of Gram Panchayat Nandgaon Chincholi has challenged the order dated 27.12.2017 passed by the Collector refusing to permit the petitioner to cast her vote in the election of Upa-Sarpanch that was to be held on the next day. 3. The facts in brief giving rise to the present writ petition are that the petitioner came to be elected as a Sarpanch of the aforesaid Gram Panchayat. The elections to the post of Upa-Sarpanch were to be held on 28.12.2017. Hence, on the previous day the petitioner as Sarpanch approached the Collector and sought permission to cast her vote in the said election. The petitioner relied upon the judgment of the Division Bench in the case of Anuja Kalyan Gore vs. State of Maharashtra and Others, Writ Petition No. 209 of 2018 decided on 06.03.2018 at the Aurangabad Bench of this Court wherein it was held that the Sarpanch was entitled to cast his vote in such elections. The Collector rejected the said application on the ground that the adjudication therein pertained to the concerned Gram Panchayat and it could not be applied to the Gram Panchayat where the petitioner was elected as Sarpanch. Thereafter on 28.12.2017, said elections were held in which the respondent no. 4 came to be elected as Upa-Sarpanch after obtaining four votes while his opponent obtained three votes. Being aggrieved, the present writ petition has been filed on 25.01.2018. 4. Shri A.S. Deshpande, learned counsel for the petitioner submitted that the Collector was not justified in refusing permission to the petitioner to cast her vote in the election of the Upa-Sarpanch. According to him, this issue stands concluded by the judgment of the Division Bench in Anuja Kalyan Gore (supra) wherein it was held by the Division Bench that a directly elected Sarpanch was entitled to exercise rights conferred upon an elected Member of the Panchayat including the right to cast vote at the metting even to elect the Upa-Sarpanch. Despite the fact the aforesaid decision was brought to the notice of the Collector, he failed to follow the law laid down therein only on the ground that said judgment was applicable to the Gram Panchayat in that case. Despite the fact the aforesaid decision was brought to the notice of the Collector, he failed to follow the law laid down therein only on the ground that said judgment was applicable to the Gram Panchayat in that case. He also referred to the subsequent order of the Division Bench in Writ Petition No. 6390 of 2018, Manisha Janardhan Desai and Another vs. State of Maharashtra and Others decided at the Principal Seat following the earlier decision in Anuja Kalyan Gore (supra). It was then submitted that even though the remedy of filing a dispute under Section 33(5) of the said Act was available to the petitioner, the same had not been filed in view of the fact that it was the Collector who would have adjudicated the said dispute. Hence, no useful purpose would have been served as the petitioner would have had to challenge the order of the Collector before the same Authority. In that regard, he referred to the decision in Ram and Shyam Company vs. State of Haryana and Others, (1985) AIR SC 1147 and submitted that the jurisdiction under Article 227 of the Constitution of India deserves to be exercised in these facts. He therefore submitted that the impugned order was liable to be set aside. 5. Shri J.B. Gandhi, learned counsel for the respondent no. 5 supported the impugned order. According to him, the petitioner should not be permitted to bypass the statutory remedy and approach this Court directly. The remedy available under Section 33(5) of the said Act ought to have been availed. It was his further submission that the dispute in question was required to be raised within a period of fifteen days from the date of the order and the same was not done within said period. He however did not dispute the law as laid down in the aforesaid decisions. Shri J.B. Kasat, learned counsel appeared for the respondent no. 2 and Shri A.V. Palshikar, learned Assistant Government Pleader appeared for the respondent nos.1 and 3. 6. I have heard the learned counsel for the parties at length and I have perused the documents placed on record. Shri J.B. Kasat, learned counsel appeared for the respondent no. 2 and Shri A.V. Palshikar, learned Assistant Government Pleader appeared for the respondent nos.1 and 3. 6. I have heard the learned counsel for the parties at length and I have perused the documents placed on record. In the light of the judgment of the Division Bench in Anuja Kalyan Gore (supra), it is clear that a directly elected Sarpanch is entitled to participate in the elections of the Upa-Sarpanch and exercise all rights that are available to an elected Member. This decision has been subsequently followed in Vasundhara Shivdas Ubale (supra) and hence the aforesaid position now stands well settled. The petitioner had moved the Collector on 27.12.2017 and by referring to the aforesaid decision had prayed that she be permitted to vote in the election of the Upa-Sarpanch. The Collector merely observed that the orders passed in the case of Anuja Kalyan Gore (supra) were applicable only to the concerned Gram Panchayat and hence the application preferred by the petitioner came to be rejected. These observations of the Collector are contrary to the law as laid down. The judgment in question would be applicable as a law laid down by this Court and would thus be binding on all the Gram Panchayats in the State. There was no legal basis for the Collector to have observed that the law laid down in the said decision was applicable only to the concerned Gram Panchayat. On this ground, the impugned order dated 27.12.2017 is liable to be set aside. The petitioner was unnecessarily deprived from voting in the election of the Upa-Sarpanch. As a consequence the election of the respondent no. 4 as Upa-Sarpanch is also liable to be set aside in view of the fact that the respondent no. 4 was elected by a margin of only one vote. 7. As regards the aspect of availing the alternate remedy is concerned, the same is not an inflexible rule that in every case the party must be directed to avail the statutory remedy available. In a given case, if it is found that there are no disputed facts and a pure legal question arises, discretion can be exercised by entertaining the proceedings without requiring the concerned party to avail the statutory remedy. In a given case, if it is found that there are no disputed facts and a pure legal question arises, discretion can be exercised by entertaining the proceedings without requiring the concerned party to avail the statutory remedy. As per provisions of Section 33(5) of the said Act, a dispute would lie before the Collector within a period of fifteen days from the date of the election. In the present case, the petitioner approached the Collector a day prior to the election that was held on 28.12.2017. The Collector having opined that the judgment relied upon by the petitioner would not apply to the present case was a sufficient reason for the petitioner to approach this Court by filing the present writ petition. The writ petition has been filed on 25.01.2018 which is within a period of one month from the passing of the order dated 27.12.2017. In the light of the law as laid down in Ram and Shyam Company (supra), it is found that the present writ petition raises a fit case which deserves to be entertained without requiring the petitioner to further approach the Commissioner under provisions of Section 33(5) of the said Act. 8. In the light of aforesaid discussion, the following order is passed:- The order dated 27.12.2017 passed by the Collector refusing permission to the Collector to cast her vote in the election of Upa-Sarpanch is set aside. Consequently, the election of the respondent no. 4 as Upa-Sarpanch is set aside. It is directed that fresh elections be held to elect Upa-Sarpanch of Gram Panchayat Nandgaon Chincholi. The respondent no. 1- Collector shall notify a fresh date for holding such election in accordance with law. 9. The Writ Petition is allowed. Rule is made absolute in aforesaid terms. No costs.