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2019 DIGILAW 588 (BOM)

Sujata v. State of Maharashtra

2019-02-28

Z.A.HAQ

body2019
JUDGMENT : Z.A. HAQ, J. 1. Heard. 2. The petitioner got elected as member of the Panchayat Samiti in the election which was held on 06/07/2015. The petitioner got elected from the seat reserved for woman (OBC). At the time of submitting the nomination form, the petitioner had submitted her caste certificate, however, caste validity certificate was not submitted as it was not issued by the Scrutiny Committee till that date. As per Section 12A of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (for short "the Act of 1961") (as it stood then), the petitioner was required to submit the caste validity certificate within six months from the date of declaration of the result of the election. The petitioner had not received the caste validity certificate within time and therefore, she could not comply as per Section 12A of the Act of 1961. The learned Collector, by order dated 27/01/2017 has disqualified the petitioner from continuing as the Member of the Panchayat Samiti. This order is challenged in this petition. 3. The provisions of Section 12A of the Act of 1961 were amended initially by the Maharashtra Village Panchayats and the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 2018 (hereinafter referred to as "the Maharashtra Act No. LXVI of 2018"). The Maharashtra Act No. LXVI of 2018 was published in the Maharashtra Government Gazette on 14/12/2018. Section 2 of the Maharashtra Act No. LXVI of 2018 amended Section 12A of the Act of 1961. Then the Maharashtra Village Panchayats and Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) (Amendment) Ordinance, 2019 (hereinafter referred to as "the Maharashtra Ordinance No. II of 2019") is promulgated. The Maharashtra Ordinance No. II of 2019 is published in the Maharashtra Government Gazette on 14/02/2019. Section 2 of the Maharashtra Ordinance No. II of 2019 has amended Section 2 of the Maharashtra Act No. LXVI of 2018. 4. The Maharashtra Ordinance No. II of 2019 is published in the Maharashtra Government Gazette on 14/02/2019. Section 2 of the Maharashtra Ordinance No. II of 2019 has amended Section 2 of the Maharashtra Act No. LXVI of 2018. 4. The position as it stands today i.e. after issuance of the Maharashtra Ordinance No. II of 2019, is that any person who has obtained the caste certificate or the caste validity certificate after 26/03/2015, but has not submitted such certificate within the stipulated period i.e. within 12 months from the date of declaration of the result of the election, shall not be deemed to be disqualified under the provisions of the Act of 1961, if he has submitted the caste validity certificate to the competent authority after expiry of such stipulated period but before the publication of the Maharashtra Ordinance No. II of 2019 in the Official Gazette or if he submits such certificate within three months from the date of publication of the Maharashtra Ordinance No. II of 2019 in the Official Gazette. 5. Section 8 of the Maharashtra Act No. LXVI of 2018 laid down that any person who had obtained the caste certificate or validity certificate but had not submitted the certificate prior to the commencement of the Maharashtra Act No. LXVI of 2018, shall not be deemed to be disqualified under the provisions of the Panchayat law, if he submitted the certificate within three months from the date of commencement of the Maharashtra Act No. LXVI of 2018. The proviso below Section 8 of the Maharashtra Act No. LXVI of 2018 laid down that the provisions of Section 8 of the Maharashtra Act No. LXVI of 2018 would not apply where the State Election Commission had already, prior to the date of commencement of the Maharashtra Act No. LXVI of 2018, had held elections to fill the vacancy of such person or had declared the programme for holding of such election. 6. By Section 4 of the Maharashtra Ordinance No. II of 2019, Section 8 of the Maharashtra Act No. LXVI of 2018 is amended and Subsection (2) is added. 6. By Section 4 of the Maharashtra Ordinance No. II of 2019, Section 8 of the Maharashtra Act No. LXVI of 2018 is amended and Subsection (2) is added. The effect of this amendment is that the person, who has obtained the caste certificate or validity certificate after 26/03/2015 but has not submitted the certificate within the stipulated period as per the provisions of the Act of 1961, is protected and is not deemed to be disqualified under the provisions of the Act of 1961 if he has submitted the validity certificate to the competent authority after expiry of such stipulated period but before the publication of the Maharashtra Ordinance No. II of 2019 in the Official Gazette, or if he submits the certificate within three months from the date of publication of the Maharashtra Ordinance No. II of 2019 in the Official Gazette. 7. In the present case, the petitioner got the caste validity certificate on 12/06/2015 and submitted it to the competent authority on 12/02/2016. On 20/02/2017, this Court has granted an interim order in favour of the petitioner and has stayed the effect, operation and implementation of the order passed by the learned Collector on 27/01/2017. Consequently, the petitioner continues in the post of Member of the Panchayat Samiti and the vacancy is not notified and therefore, there is no question of holding of election for that post. 8. In view of the above facts, it is clear that the petitioner gets benefit of Section 4 of the Maharashtra Ordinance No. II of 2019 by which Sub-section (2) is introduced in Section 8 of the Maharashtra Act No. LXVI of 2018. As the petitioner has submitted the caste validity certificate on 12/02/2016 i.e. before the publication of the Maharashtra Ordinance No. II of 2019 in the official gazette, as per Section 8(2) of the Maharashtra Act No. XLVI of 2018 (as amended by Section 4 of the Maharashtra Ordinance No. II of 2019), the petitioner cannot be deemed to be disqualified for not submitting the caste validity certificate within the period as was stipulated earlier. 9. Hence, the following order is passed:- ORDER (a) The impugned order is set aside. Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.