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2019 DIGILAW 305 (BOM)

RASHTRAPAL v. DIVISIONAL COMMISSIONER, AMRAVATI

2019-02-01

MANISH PITALE

body2019
JUDGMENT : MANISH PITALE, J. 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. 2. By this writ petition, the petitioners have challenged order 23.05.2018 passed by the respondent no.1 Divisional Commissioner, Amravati, whereby appeal filed by respondent no.6 has been allowed and order passed by the respondent no.2 Collector in favour of the petitioners, has been set aside. As a result of the impugned order passed by respondent no.1, the unopposed election of respondent no.6 as Up-Sarpanch, Gram Panchayat, Sukli, tehsil Patur, district Akola, has been upheld. 3. The petitioners and respondent no.6 along with others were elected as members of Gram Panchayat, Sukli, in election held in October, 2017. The respondent no.5 was directly elected as the Sarpanch of the said Gram Panchayat. There were total nine members who were elected in the said election to the Gram Panchayat. Election for the position of UpSarpanch was to be conducted as per procedure prescribed in Section 33 of the Maharashtra Village Panchayats Act, 1958 (for short 'the Act'). The procedure for submitting filing of nominations, scrutiny thereof and for election of the UpSarpanch is governed by Rules 6 to 10 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 (hereafter referred to as the Rules of 1964). A meeting for conducting the election of Upa-Sarpanch in terms of the aforesaid procedure was fixed for 23.12.2017, wherein the nomination form of petitioner no.1 was delivered to respondent no.5, being the Presiding Officer and Sarpanch of the said Gram Panchayat at 11.50 a.m. on 23.12.2017. It has come on record that the respondent no.5 purportedly rejected the said nomination form of the petitioner no.1 at about 12.06 in the afternoon of the same day, on the ground that the nomination form of petitioner no.1 had not been filed or delivered in terms of Rule 6 of the Rules of 1964. The meeting for election of UpaSarpanch started at 2 p.m. on 23.12.2017 and in the minutes of the meeting, it was recorded by the respondent no.5/Sarpanch that as neither the candidate i.e. petitioner no.1 nor the proposer i.e. petitioner no.5 had personally delivered the nomination form and it was delivered by a person who was not even a member of the Gram Panchayat, the nomination form of petitioner no.1 had been rejected. It was then recorded by respondent no.5 that since the only remaining valid nomination form was that of respondent no.6, he was declared as elected unopposed Upa-Sarpanch of the said Gram Panchayat. The petitioners, being five in number, registered their protest on the aforesaid decision of the respondent no.5 and their protest was recorded in the minutes of the meeting. It was the contention of the petitioners that in the Rules of 1964, it was not necessary for the nomination form of petitioner no.1 to be delivered personally either by him or his proposer i.e. the petitioner no.5 and that the unopposed election of respondent no.6 was illegal and invalid because majority of the members i.e. the petitioners were clearly in support of electing petitioner no.1 as the Upa-Sarpanch of the Gram Panchayat. Despite the objections raised by the petitioners, the respondent no.5 declared the respondent no.6 as elected unopposed on the position of Upa-Sarpanch. 4. Aggrieved by the said action of respondent no.5, the petitioners filed dispute before respondent No.2 Collector under Section 33(5) of the aforesaid Act. On 26.04.2018, the respondent no.2 Collector passed an order accepting the contentions of the petitioners, thereby holding that the unopposed election of respondent no.6 as Upa-Sarpanch was not sustainable. The respondent no.2 allowed the dispute raised by the petitioners and thereupon directed that election for the post of Upa-Sarpanch of the Gram Panchayat should be conducted afresh in terms of the Act and the Rules. 5. The aforesaid order of the respondent no.2 was challenged by respondent no.6 by filing an appeal under Section 33(5) of the said Act before the respondent no.1 Divisional Commissioner. By the impugned order, the respondent no.1 allowed the appeal of respondent no.6, holding that since the nomination form of petitioner no.1 was delivered to respondent no.5 i.e. the Presiding Officer and Sarpanch on 23.12.2017 by a person who was not even a member of the Gram Panchayat, the nomination form of petitioner no.1 was correctly rejected and that, therefore, the order of the respondent no.2 allowing dispute in favour of the petitioners was not sustainable. Accordingly, the respondent no.1 allowed the appeal of respondent no.6, set aside the order of the respondent no.2 Collector and held that the decision of respondent no.5 as Presiding Officer and Sarpanch taken on 23.12.2017, declaring the respondent no.6 as elected unopposed on the position of Upa-Sarpanch was confirmed. Accordingly, the respondent no.1 allowed the appeal of respondent no.6, set aside the order of the respondent no.2 Collector and held that the decision of respondent no.5 as Presiding Officer and Sarpanch taken on 23.12.2017, declaring the respondent no.6 as elected unopposed on the position of Upa-Sarpanch was confirmed. The present writ petition has been filed by the petitioners challenging the said order. 6. Mr. S.D. Chopde, learned counsel appearing for the petitioners, submitted that the impugned order deserved to be set aside as it is based on erroneous interpretation of Rule 6 of the Rules of 1964 and that a proper interpretation of the same would demonstrate that delivery of nomination form for election to the post of Up-Sarpanch was not to be made personally either by the candidate i.e. petitioner no.1 or by the proposer i.e. petitioner no.5. According to the learned counsel, what was required was that the properly filled nomination form was to be submitted before the respondent no.5 Presiding Officer/Sarpanch not less than two hours before the time fixed for the meeting wherein the Upa-Sarpanch was to be elected. It was submitted that since the nomination form of petitioner no.1 validly filled and bearing the signatures of the candidate i.e. petitioner no.1 and the proposer i.e. petitioner no.5 had been admittedly delivered at 11.50 a.m. to the respondent no.5, the said nomination form could not have been rejected. It was submitted that there was no provision for rejection of the nomination form before the meeting started at 2 p.m. on 23.12.2017 because as per Rule 9 of the Rules of 1964, scrutiny of the nomination papers was to be undertaken after commencement of the meeting. The learned counsel also referred to the Bombay Village Panchayats Election Rules, 1959 (Rules of 1959) and the Bombay Village Panchayats (Delivery of Notice of Resignation) Rules, 1965 (Rules of 1965) to emphasize that where it was expected that delivery of a particular document was to be made personally, it had been so specified. On this basis, it was submitted that the respondent no.1 had wrongly interpreted Rule 6 of Rules of 1964 while allowing appeal of the respondent no.6. 7. Mr. On this basis, it was submitted that the respondent no.1 had wrongly interpreted Rule 6 of Rules of 1964 while allowing appeal of the respondent no.6. 7. Mr. U.J. Deshpande, learned counsel appearing for the contesting respondent no.6, on the other hand, submitted that the respondent no.1 Commissioner had correctly interpreted Rule 6 of the Rules of 1964 to hold that the petitioner no.1 as the candidate or the petitioner no.5 as the proposer ought to have delivered the nomination form of petitioner no.1 personally to the respondent no.5 Presiding Officer/Sarpanch. The learned counsel placed emphasis on the form of nomination paper prescribed under the Rules wherein the form of receipt of nomination paper is also specified and it was submitted that when the petitioners had failed to place on record the receipt issued in terms of Rule 6 of the Rules of 1964, it could not be said that the nomination form of petitioner no.1 had been delivered in terms of the said Rules. On this basis, it was contended that the respondent no.6 had been validly elected unopposed on the position of UpaSarpanch. 8. Although counsel had entered appearance for respondent no.5, none has appeared on behalf of the said respondent today. 9. Mr. A.R. Chutke, learned AGP has appeared on behalf of respondent nos. 1 and 2. 10. In order to examine as to whether the impugned order passed by the respondent no.1 Divisional Commissioner was justified, it would be necessary to refer to the relevant provisions of the Act and Rules. Section 33 of the Act, which provides for the procedure for election of Sarpanch and UpaSarpanch, reads as follows:- "33. Procedure for election of Sarpanch and Upa-Sarpanch- (1) On the establishment of a panchayat for the first time under this Act, or on its reconstitution or establishment under Sections 145 and 146, or on the expiry of the term of a panchayat a meeting shall be called on the date fixed under sub-section (1) of Section 28 by the (Collector), for the election of the Sarpanch and Upa-Sarpanch. In the case where the offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, a meeting shall be called on the date fixed by the [Collector], for the election of the Sarpanch and Upa-Sarpanch. In the case where the offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, a meeting shall be called on the date fixed by the [Collector], for the election of the Sarpanch and Upa-Sarpanch. (2) The meeting called under sub-section (1) shall be presided over by such officer as the [Collector] may by order appoint in this behalf. The officer aforesaid shall, when presiding over such meeting, have the powers and follow the procedure prescribed, but shall not have the right to vote. (3) No business other than the election of the Sarpanch and Upa-Sarpanch shall be transacted at such meeting. (4) If in the election of the Sarpanch or UpaSarpanch there is an equality of votes, the result of the election shall be decided by lot drawn in the presence of the officer presiding in such manner as he may determine. (5) In the event of a dispute arising as to the validity of the election of a Sarpanch or Upa-Sarpanch under sub-section (1) [the Officer presiding over such meeting or any member may, within fifteen days from the date of the election, refer the dispute to the Collector for decision. An appeal against the decision of the Collector may, within fifteen days from the date of such decision, be filed before the Commissioner, whose decision shall be final. The Collector or Commissioner shall give his decision as far as possible within sixty days of the receipt of the reference, or as the case may be, appeal]. 11. Rules 6 to 10 of the Rules of 1964 pertaining to the election of Sarpanch and Upa-Sarpanch of Gram Panchayat, read as follows:- "6. Filing of nominations - Not less than two hours before the time fixed for the meeting for the election of a Sarpanch or Upa-Sarpanch, any member of the Panchayat may nominate any other member for election as Sarpanch or Upa-Sarpanch by delivering to the Presiding Officer a nomination paper completed in the form appended to these rules and on receipt of the nomination paper, the Presiding Officer shall record on the nomination paper the date on which and the time at which it was received by him and pass a receipt in token of having received the nomination paper. 7. 7. Member to nominate not more than one candidate- No member shall nominate more than one candidate for the office of the Sarpanch or Upa-Sarpanch: Provided that if a member has nominated more than one candidate for the office of the Sarpanch or Upa-Sarpanch the nomination which is received by the Presiding Officer, shall alone be taken into consideration for scrutiny. [Provided further that, if only one member is elected from the Village Panchayat reserved for certain category, there shall be no need of the proposer at the time of filing nomination. [Provided also that, if two or more members are elected from the reserved category for which the office of the Sarpanch is reserved and none of them have got any proposer, then nomination forms of all such members shall be accepted.] 8. Person eligible to act as proposer etc. - No person whose name has not been published as a member of the Panchayat under sub-section (3) of Section 10 shall be eligible to act as a proposer or as a person to be nominated for the office of the Sarpanch or Upa-Sarpanch. 9. Scrutiny of nominations, etc. - (1) After the commencement of the meeting convened under sub-section (1) of Section 33, the Presiding Officer shall scrutinise all nomination papers delivered to him under Rule 6, decide any objection which may be made to any nomination and may either on such objection or on his own motion reject any nomination if it does not satisfy Rule 6,7 or 8. (2) The Presiding Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (3) After the scrutiny under sub-rule (1) is over the Presiding Officer shall read out to the members present at such meeting the names of the members who in his opinion have been duly nominated together with those of their proposers. 9-A. Withdrawal of candidate - (1) Any candidate may withdraw his candidature by a notice in writing subscribed by him and delivered to the Presiding Officer immediately after the scrutiny of nomination papers under Rule 9 is over. (2) The notice may be given either by the candidate in person or by his proposer who has been authorised in this behalf in writing by the candidate. (2) The notice may be given either by the candidate in person or by his proposer who has been authorised in this behalf in writing by the candidate. (3) No person who has given a notice of withdrawal of his candidature under sub-rule (1) shall be allowed to cancel the notice. (4) The Presiding Officer shall, on being satisfied as to the genuineness of a notice of withdrawal and the identity of the person delivering it under sub-rule (1), read out to the members present at such meeting the names of the persons withdrawal their candidature.] 10. Procedure for election - (1) If only one candidate has been duly nominated for the office of the Sarpanch or Upa-Sarpanch, he shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Sarpanch. (2) If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch or as the case may be, Upa-Sarpanch. The voting at such election shall be by show of hands. If, however, [any member present at the meeting so demands,] the voting shall be by ballot. The candidate who obtains the highest number of votes shall be declared to have been duly elected as Sarpanch or, as the case may be, UpaSarpanch. When any equality of valid votes is found to exist between any two or more candidates and the addition of one vote will entitle any of them to be declared as Sarpanch or, as the case may be, UpaSarpanch, the determination of the candidate to whom such additional vote shall be deemed to have been given shall be made by lot to be drawn by the Presiding Officer in such manner as he shall determine." 12. Section 33 of the Act specifies that a meeting shall be called for election of Upa-Sarpanch, which in the present case, undisputedly was called on 23.12.2017 at 2 p.m. As per Rule 6 of the Rules of 1964, nomination forms for election of Sarpanch were required to be delivered with the Presiding Officer i.e. the respondent no.5 herein, on or before 12 noon on 23.12.2017. In the present case, the nomination form of petitioner no.1 was delivered at 11.50 a.m. to the respondent no.5, about which there is no dispute. In the present case, the nomination form of petitioner no.1 was delivered at 11.50 a.m. to the respondent no.5, about which there is no dispute. This is evident from a perusal of the nomination form itself, which carries an endorsement that the same was delivered at 11.50 a.m. It has come on record that the said nomination form of petitioner no.1 was rejected by respondent no.5 at 12.06 p.m. which was even before the meeting started. A perusal of the Rules clearly shows that there is no such provision for rejection of nomination paper even before commencement of the meeting, because Rule 9 of the Rules of 1964 pertaining to scrutiny of nominations, clearly states that such scrutiny would take place after commencement of the meeting. In the present case, the validity of the nomination form could have been examined only after commencement of the meeting at 2 p.m. on 23.12.2017. Therefore, the purported rejection of nomination form of petitioner no.1 at 12.06 p.m. by respondent no.5 was wholly illegal. 13. In any case, in the minutes of the meeting that was held on 23.12.2017, it was recorded that the respondent no.5 as Presiding Officer rejected the nomination paper of petitioner no.1 not because it was delivered within two hours of commencement of the meeting but because it was delivered by a person who was not even a member of the Gram Panchayat. According to the respondent no.5, the nomination form was mandatorily required to be delivered either by the petitioner no.1, being the candidate himself, or by the petitioner no.5, being the proposer of his name. On this basis, it was recorded that the nomination form stood rejected, as a consequence of which, the respondent no.6 stood elected unopposed. The minutes of the meeting indeed record the protest lodged by the petitioners, wherein it was emphatically stated that the nomination form was indeed delivered by the petitioner no.1 as the candidate himself in the presence of petitioner no.5 who was the proposer. But, the respondent no.5 ruled in favour of respondent no.6, having held that the nomination form of petitioner no.1 was not delivered in terms of Rule 6 of the Rules of 1964. 14. But, the respondent no.5 ruled in favour of respondent no.6, having held that the nomination form of petitioner no.1 was not delivered in terms of Rule 6 of the Rules of 1964. 14. The respondent no.2 Collector in his order dated 26.04.2018 held in favour of the petitioners and set aside the election of the respondent no.6, on the short ground that Rule 6 of the Rules of 1964 did not require delivery of the nomination form personally by the candidate or the proposer. On the other hand, the respondent no.1 held in favour of respondent no.6 on the ground that Rule 6 of the Rules of 1964 mandatorily required delivery of nomination form personally either by the candidate or the proposer. 15. Therefore, the fate of the present writ petition revolves around interpretation of Rule 6 of the Rules of 1964. A perusal of the said Rule shows that the requirements of the same are (a) that the nomination form has to be delivered not less than two hours before the time fixed for meeting for election of Sarpanch or Upa-Sarpanch, (b) that any member of the Gram Panchayat may nominate any other member for the election by delivering the nomination form completed in all respects to the Presiding Officer and (c) that the Presiding Officer shall record the date on which and the time at which the nomination form was delivered to him and to pass a receipt in token thereof. 16. In the present case, there is no dispute about the fact that the nomination form of petitioner no.1, which was proposed by petitioner no.5 bearing signatures of both, was delivered to respondent no.5- the Presiding Officer more than two hours before the time fixed for the meeting. It is undisputed that nomination form was delivered at 11.50 a.m. , while the meeting was to commence at 2 p.m. It was also undisputed that the nomination form of petitioner no.1, complete in all respects, was delivered to the respondent no.5 Presiding Officer and the date and time of delivery of the same was recorded on the nomination form. It is undisputed that nomination form was delivered at 11.50 a.m. , while the meeting was to commence at 2 p.m. It was also undisputed that the nomination form of petitioner no.1, complete in all respects, was delivered to the respondent no.5 Presiding Officer and the date and time of delivery of the same was recorded on the nomination form. The only question that arises for consideration is, as to whether in terms of the above quoted Rule 6 of the Rules of 1964, the nomination form of petitioner no.1 was required to be "personally" delivered by either the candidate himself i.e. the petitioner no.1 or the proposer/member of the Gram Panchayat i.e. the petitioner no.5 in the present case. A bare perusal of the said Rule shows that the mandate of the rule is that a member of the Gram Panchayat shall be nominated by another member of the said Gram Panchayat "by delivering to the Presiding Officer a nomination paper completed in the form appended to the Rules". There is no reference to the delivery to be made "personally" either by the candidate or the proposer. Yet, the respondent no.5 Presiding Officer/Sarpanch insisted in the present case that the delivery of the nomination form of petitioner no.1 ought to have been made "personally" either by him or his proposer i.e. petitioner no.5. The said interpretation of Rule 6 of the Rules of 1964 adopted by respondent no.5 while conducting the meeting on 23.12.2017 and endorsed by the respondent no.1 Commissioner in the impugned order amounts to reading words into the said Rule 6 of Rules of 1964 that are not found in the said Rule. There is no such requirement specified or mandated in the said Rule that the delivery of nomination paper has to be personally made by the candidate or the proposer. 17. In this regard, the learned counsel appearing for the petitioners is justified in referring to Rule 8 of the Rules of 1959, wherein it is specified that the nomination form of the candidate standing for election of member of the Gram Panchayat has to present the nomination form "either in person or through a representative authorized in writing in that behalf". The learned counsel has also invited attention of this Court to Rule 3 of the Rules of 1965 concerning the manner of delivery of notices of resignations, wherein sub-rule 2 specifically provides that such a notice of resignation shall be delivered "by registered post with acknowledgment or personally or through any person duly authorized in writing in that behalf". It would be appropriate to refer to the said Rules at this stage. Rule 8 of the Rules of 1959 reads as follows:- "8. Nomination of candidates- (1) On the day appointed for the nomination of candidates, and during the hours appointed by the Mamlatdar under Rule 7 in this behalf, each candidate shall make an application in writing in Form 'A' signed by him and present it either in person or through a representative authorised in writing in this behalf by such candidate to the Returning Officer signifying his willingness to serve as a member of the Panchayat. (2) On receiving a nomination paper under sub-rule (1), the Returning Officer shall write on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and exact time at which the application was delivered to him. [(3) When an election is held at or about the same time for two or more wards in a village, one and the same person may stand for election in all or any number of such wards.]" [Explanation- A person who is unable to write his name shall be deemed to have duly signed the nomination paper if he has placed a mark or thumb impression in the presence of the Returning Officer or any other officer authorised by the Returning Officer in this behalf and such officer on being satisfied as to the identity of that person, has attested the mark or thumb impression as the mark or thumb impression of that person.] Rule 3 of the Rules of 1965 reads as follows: "3. Manner of delivery of notices- [(1) Subject to the provisions of sub-rule (2),- (a) the resignation of the office of a member given under sub-section (1) of Section 29 shall be delivered by the member to the Sarpanch and by the Sarpanch to the Chairman of the Panchayat Samiti; (b) the notice of resignation of the Office of Sarpanch given under sub-section (1) of Section 34 shall be delivered by the Sarpanch to the Chairman of the Panchayat Samiti; (c) the notice of resignation of the office of Upa-Sarpanch given under sub-section (2) of Section 34 shall be delivered by the Upa- Sarpanch to the Sarpanch.] (2) Every [such resignation or notice of resignation] [shall be in Form I and] shall be delivered by registered post with acknowledgment due or personally or through any person duly authorised [in writing] in this behalf by the person who gives [resignation or, as the case may be, notice of resignation]. (3) The authority to which such notice is delivered shall forthwith acknowledge receipt of the same and issue a receipt [in Form II] in token of having received such notice." 18. The scheme of the aforesaid Act and the Rules read together suggests that where it is expected that a document is to be delivered in a particular manner i.e. either by registered post or personally or through a person duly authorised in writing, it has been so specified. In that backdrop, when Rule 6 of the Rules of 1964 is read, it becomes clear that the words used are "any member of the Panchayat may nominate any other member for election as Sarpanch or Up-Sarpanch by delivering to the Presiding Officer a nomination paper". In this rule, the mode of delivery is not specified. Therefore, the learned counsel for the petitioners was justified in contending that personal delivery of the nomination form was not contemplated in Rule 6 of the Rules of 1964. This was of course without prejudice to the contention of the petitioners that the petitioner no.1 personally, in the presence of the petitioner no.5, had indeed delivered the nomination form to respondent no.5 the Presiding Officer. This was of course without prejudice to the contention of the petitioners that the petitioner no.1 personally, in the presence of the petitioner no.5, had indeed delivered the nomination form to respondent no.5 the Presiding Officer. In this context the format of receipt to be issued by the concerned Authority under Rule 3(3) of the Rules of 1965 shows that it is to be specifically recorded as to whether the resignation/notice of resignation was delivered by registered post or personally or by person duly authorized in writing. But, under Rule 6 of the Rules of 1964, applicable in the present case, only the time and date of delivery of the nomination paper is to be recorded in the receipt. There is no dispute about the time and date of delivery of nomination paper in the present case. Therefore, no adverse inference can be drawn against the petitioners in the present case. 19. The question as to whether the nomination form was indeed delivered personally by the petitioner no.1 in the presence of petitioner no.5 is a question of fact on which it is only the word of the petitioners against that of respondent no.5 the Presiding Officer. But, a proper interpretation of Rule 6 of the Rules of 1964 shows that the respondent no.5 Presiding Officer was not justified in insisting that the nomination form of the petitioner no.1 was required to be "personally" delivered either by the petitioner no.1 (candidate) or the petitioner no.5 (proposer), who had nominated the name of petitioner no.1. Once it is held that the delivery of nomination form was not required to be done personally, the very ground of rejection of nomination form of the petitioner is taken away. This shows that the order dated 26.04.2018 passed by the respondent no.2 Collector was justified and that the impugned order passed by the respondent no.1 Commissioner setting aside the same, was wholly unsustainable. 20. The respondent no.2 Collector correctly interpreted Rule 6 of the Rules of 1964 to hold that the respondent no.6 could not have been declared elected unopposed in the office of Upa-Sarpanch of the Gram Panchayat and further direction to hold fresh election was also in consonance with law. 20. The respondent no.2 Collector correctly interpreted Rule 6 of the Rules of 1964 to hold that the respondent no.6 could not have been declared elected unopposed in the office of Upa-Sarpanch of the Gram Panchayat and further direction to hold fresh election was also in consonance with law. The other relevant aspect of the present case is that in the Gram Panchayat there were nine elected members, the five petitioners were on one side while it was on record that there were only four members supporting the respondent no.6 for election to the position of Upa-Sarpanch. In a democracy, to rob the majority of their right to elect a candidate of their choice would be anathema, particularly when it was based on a wholly erroneous interpretation of the Rules governing the procedure for election. 21. In the light of the above, the present writ petition is allowed. The impugned order is quashed and set aside and the order dated 26.04.2018 passed by the respondent no.2 Collector is restored. Accordingly, the election in terms of said order passed by the respondent no.2 Collector, shall now be held afresh, as per the procedure provided in the aforesaid Act and the Rules. 22. Rule made absolute in the above terms with no order as to costs.