SHOBHABAI NARAYAN SHINDE versus THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS. on 4 January 2022

1. Leave granted.

2. The core issue in these appeals is: whether an appeal could befiled before the Divisional Commissioner against an order passed by theCollector under Section 14B(1) of the Maharashtra Village PanchayatsAct, 1959[1], declining to disqualify a Sarpanch/Member of the Panchayatfor allegedly having failed to lodge an account of election expenses withinthe time and in the manner prescribed by the State Election Commission,without offering any good reason or justification for such failure?

3. Briefly stated, the appellants contested elections held inSeptember, 2018 for electing a new Panchayat. The appellant in appealarising out of SLP (C) No. 295/2021 had been directly elected as aSarpanch of Village Panchayat, Kusumba, Taluka and District Dhule inthe State of Maharashtra, from public, whereas, the appellant in appealarising out of SLP (C) No. 451/2021 was elected as a member of thesame Village Panchayat.

4. Respondent No. 2 filed two Dispute Applications being Nos.10/2019 and 11/2019 in the office of respondent No. 5 – Collector, seekingdeclaration under Section 14B(1) - that the appellants herein stood 1 for short, “the 1959 Act”

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Adisqualified for not submitting the election expenses within the stipulatedtime. The Collector, after considering the relevant material and thesubmissions of the rival parties, rejected both the Dispute Applicationsby separate judgment and order dated 5.2.2019 being devoid of merits.

5. The respondent No. 2 thereafter carried the matter in appealBbefore the Divisional Commissioner, Nasik Region, Nasik[2], questioningthe correctness of the rejection of his Dispute Applications by theCollector. The Divisional Commissioner allowed both the appeals byseparate judgment and order dated 15.7.2019 and thereby declaring theappellants as disqualified and ineligible to remain as Gram PanchayatSarpanch/Member.C6. Feeling aggrieved, the appellants filed writ petitions before theHigh Court of Judicature at Bombay Bench at Aurangabad[3] being WritPetition Nos. 9244/2019 and 9245/2019.

7. As common question had arisen for consideration, the HighDCourt vide impugned common judgment and order dated 17.12.2020,dismissed both the writ petitions and affirmed the order of disqualificationpassed by the Divisional Commissioner against the appellants herein.

8. The principal challenge before the High Court was about thejurisdiction of the Divisional Commissioner to entertain the appeals asEfiled by the respondent No. 2. For, the 1959 Act does not provide for anappeal against the order passed by the Collector under Section 14B(1)in rejecting the application for declaring the incumbent member asdisqualified. Further, the remedy provided for consequent to the decisionof the Collector under Section 14B(1) before the Divisional Commissioner,is limited to removing the disqualification or reducing the period of anyFsuch disqualification. However, in a case where the Collector rejectsthe application for disqualification of Sarpanch/Member, no furtherremedy of appeal is provided for in the 1959 Act. The High Courtnegatived this contention and opined that it was open to the aggrievedapplicant(s) to assail such decision of the Collector, by way of an appealGunder Section 14B(2) before the Divisional Commissioner. To buttressthis conclusion, the High Court drew analogy from remedy of appealagainst order of Collector under Section 16(2) before the DivisionalCommissioner under Section 16(2) and then adverted to the decision in 2 for short, “the Divisional Commissioner”

H3 for short, “the High Court”

Suchita Murlidhar Kewati (Sarpanch) & Ors. vs. State ofMaharashtra & Ors.[4]Further, having rejected the objection regardingjurisdiction of the Divisional Commissioner to entertain the appeal(s),the High Court proceeded to affirm the view taken by the DivisionalCommissioner of reversing the decision of the Collector, on merits.Accordingly, the writ petitions filed by the appellants came to bedismissed.

9. We have heard Mr. Sudhanshu S. Choudhari, learned counselfor the appellants and Mr. Nishant R. Katneshwarkar, learned counselfor the respondent No. 2. They have, more or less, reiterated the standtaken before the High Court by the respective parties.

10. The provision, for disqualifying, to be a member of a Panchayatand to continue as such, is imbued in Section 14[5] of the 1959 Act. One ofthe stipulations inserted by way of amendment in 2010 with effect from6.5.2010 is clause (j-4) in Section 14(1). It predicates that a person, ifdisqualified by the State Election Commission under Section 14B of theAct, shall not be a member of a Panchayat or continue as such. Section14B[6] was also inserted by the same amendment Act in 2010. It enablesthe State Election Commission to declare a person (member of thePanchayat) as disqualified for being a member of the Panchayat or forcontesting an election for being a member for a period of five yearsfrom the date of the order so passed, if he has failed to lodge an accountof election expenses within the time and in the manner required by the 4 2013 (6) Mh.L.J. 414

5 Disqualifications. – (1) No person shall be a member of a Panchayat continue as such, who –

(a) to (j-3) xxx xxxxxx

(j-4) has been disqualified by the State Election Commission under section 14B; or…..

6 14B. Disqualification by State Election Commission. – (1) If the State ElectionCommission is satisfied that a person, - (a) has failed to lodge an account of election expenses within the time and in themanner 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 amember of panchayat or for contesting an election for being a member for a periodof five years from the date of this order.

(2) The State Election Commission may, for reasons to be recorded, remove anydisqualification under sub-section (1) or reduce the period of such disqualification.

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AState Election Commission and has no good reason or justification forsuch failure. Sub-Section (2) of Section 14B enables the State ElectionCommission to remove such disqualification or reduce the period thereof.

11. Be it noted that the State Election Commission in exercise ofits enabling powers, vide Article 243-K of the Constitution of IndiaBincluding Section 10A(2)[7] of the 1959 Act, issued an order dated19.11.2010[8] to delegate its powers, such as under Section 14B of the1959 Act to the officers of the State Government. Clause B of the statedorder stipulates that powers conferred upon the State Election Commissionunder Section 14B(1) shall vest in the concerned Collector of the Districtand powers conferred on it under Section 14B(2) shall vest with theCconcerned Divisional Commissioner.

12. By virtue of this order, the State Election Commission has hadauthorised the Collector to exercise its powers under Section 14B(1); 7 10A.State Election Commission.-D…..

(2) The State Election Commissioner may, by order, delegate any of hispowers and functions to any officer of the Commission or any officer of theState Government not below the rank of Tahsildar.

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STATE ELECTION COMMISSION, MAHARASHTRA

New Administrative Building, Opp. Ministry, Madam Cama Road, Mumbai – 400 032EDate: 19.11.2010

O R D E R

Regarding conferring of powers to declare disqualification of the candidatescontesting the elections of Zilla Parishad, Panchayat Samiti and Village Panchayats ifthey do not submit the expenditure account in the prescribed manner.No. SEC/ZPPS/2010/L.No.9/KA-7: Under the powers conferred vide Article No.243-K of the Indian Constitution, as well Section 9A(2) of the Maharashtra ZillaFParishads and Panchayat Samitis Act, 1961 and Section 10A(2) of the Bombay VillagePanchayat Act, 1958 and in exercise of other powers, the State Election Commissioner,Maharashtra pass the following order: - (A)The powers conferred under the provisions of Section 15(B)(1) and 62(A) of theMaharashtra Zilla Parishads and Panchayat Samitis Act, 1961 are hereby vestedin concerned Collector. Similarly the powers conferred under Section 15(B)(2)Gand 62(B)(1) are hereby vested in concerned Divisional Commissioners.(B)The powers conferred under the provisions of Section 14(B)(1) of the BombayVillage Panchayats Act, 1958 are hereby vested in concerned Collector.Similarly the powers conferred under Section 14(B)(2) are hereby vestedin concerned Divisional Commissioners.

By the order of Election Commissioner

…H(emphasis supplied)

whereas powers under Section 14B(2) by the Divisional Commissioner.It follows that the concerned State Government officials are ordained toexercise the assigned power in silos. Ergo, the power of State ElectionCommission under Section 14B(1) to declare that the Sarpanch/Memberof a Panchayat as disqualified, is to be exercised by the Collector andnot the Divisional Commissioner. Similarly, the Divisional Commissionercan exercise power only in respect of matters specified in Section 14B(2)- to remove the disqualification incurred under sub-Section (1) or reducethe period of such disqualification. In either case, the power to decideconcerned issues is that of the State Election Commission, whichthenceforth could be exercised by its concerned delegatee in respect ofmatters specified in the stated order.

13. Notably, no appeal is provided against the order of Collector(or of State Election Commission) refusing to disqualify the Sarpanch/Member under Section 14B(1). Similarly, no appeal is provided evenagainst the order of the Divisional Commissioner (or of State ElectionCommission) under Section 14B(2). A limited window against the orderunder Section 14B(1) passed by the Collector (or State ElectionCommission itself) declaring the Sarpanch/Member of a Panchayat asdisqualified, is kept open before the Divisional Commissioner (or theState Election Commissioner, if the order under Section 14B(1) is orwere to be passed by the State Election Commission itself) - to removesuch disqualification or to reduce the period thereof in deserving cases.To put it tersely, for the nature of power exercised by the State ElectionCommission under Section 14B, no remedy of appeal is envisioned bythe statute.

14. The power of the State Election Commission, bestowed undersub-Section (1) or (2) of Section 14B, though concerns subject ofdisqualification of a person, it operates in two different silos. In that, thepower under Section 14B(2) gets triggered only after an order ofdisqualification is passed under Section 14B(1). The former is notactivated at all in a case where the application or the proceedings todeclare the Sarpanch/Member as disqualified, is rejected or dropped.Taking any other view would inevitably result in a situation where thepower exercised by the State Election Commission under Section 14B(1)could be appealed against before itself (its delegatee). That cannot becountenanced. For, an appeal cannot lie before the same Authority/functionary who had passed the order of rejection of prayer to declarethe member concerned as disqualified. Sans an express statutory intent A

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Ato provide appeal against the order rejecting application to declare aperson disqualified, it must follow that upon passing such order the powerunder Section 14B is fully exhausted by the State Election Commission(or its delegatee, as the case may be).

15. Indubitably, an authority rejecting the proposal regardingBdisqualification, cannot sit “in appeal” over its own order of rejection.Notably, there is no express power bestowed upon the State ElectionCommission or its delegatee to review its own decision passed underSection 14B(1) or 14B(2) of the Act, as the case may be. The argumentof the respondent No. 2 that the power bestowed on the DivisionalCommissioner under Section 14B(2) posits power to imposeCdisqualification by virtue of Section 21 of the General Clauses Act, 1897,does not commend to us and the same needs to be merely stated to berejected. Similarly, we reject the argument of the respondent No. 2 thatit is a case of Casus Omissus. Whereas, the legislative intent and thesetting in which the relevant provisions are couched leaves no mannerDof doubt that such power had not been given to the delegatee (DivisionalCommissioner), as it does not inhere in the State Election Commissionitself.

16. The High Court, however, answered the question by referringto the logic under Section 16(2)[9] of the Act. We hasten to observe thatEthe High Court posed a wrong question to itself in paragraph 2 of theimpugned judgment (whether the Divisional Commissioner had jurisdiction 9 16. Disability from continuing as member. – (1) If any member of a Panchayat(a) who is elected or appointed as such, was subject to any of the disqualificationmentioned in Section 14 at the time of his election or appointment, orF(b) during the term for which he has been elected or appointed incurs any of thedisqualifications mentioned in Section 14, he shall be disabled from continuing to bea member, and his office shall become vacant.

(2) If any question whether a vacancy has occurred under this Section is raised bythe Collector suo motu or on an application made to him by any person in that behalf,the Collector shall decide the question as far as possible within sixty days from the dateof receipt of such application. Until the Collector decides the question, the memberGshall not be disabled under sub- section (1) from continuing to be a member. Anyperson aggrieved by the decision of the Collector may, within a period of fifteendays from the date of such decision, appeal to the State Government, and theorders passed by the State Government in such appeal shall be final:Provided that no order shall be passed under this sub-section by the Collectoragainst any member without giving him a reasonable opportunity of being heard.H(emphasis supplied)

to entertain an appeal under “Section 16(2)” against an order of Collectorunder Section 14B(1) refusing to disqualify a Sarpanch/Member), andas a result of which arrived at the wrong conclusion.

17. Concededly, Section 16 is a provision which speaks about thedisability from continuing as the member of a Panchayat, consequent toincurring disqualification or has been so declared under Section 14 ofthe Act. Once a Sarpanch/Member is disqualified under Section 14B byvirtue of an order under Section 14B(1), it would give rise to two situations– the first is that the person concerned can invoke option under Section14B(2) for removal of his disqualification or for reduction of the periodof such disqualification. The second is the obligation fastened upon theCollector to decide the issue as to whether vacancy has occurred onaccount of such disqualification. That question is required to be answeredby the Collector in the first instance, in terms of Section 16(2) and totake follow-up steps thereafter in filling up such vacancy. The decisionof the Collector on such question, referable to sub-Section (2) of Section16, however, has explicitly been made appealable before the StateGovernment or the delegate of the State Government. That is, completely,a different regime albeit a consequence of process referred to in Section14B(1) - to declare a Sarpanch or a member as having incurreddisqualification. This question decided by the Collector, is essentially inhis capacity as a delegatee of the State Election Commission and, dejure, deemed to have been decided by the State Election Commissionitself. Be that as it may, the question decided by the Collector underSection 16 is, in one sense, a ministerial act bestowed upon him toascertain whether vacancy had arisen as a consequence of thedisqualification order and to fill up such vacancy.

18. A priori, if the State Election Commission or its delegateewere to reject or drop the proceedings against the concerned person ormember initiated under Section 14B(1), as being devoid of merits or forany other reason, the complainant does not have remedy of appeal againstsuch decision. Such an order becomes final and is not appealable at all.Indeed, it can be assailed before the constitutional court under Article226 of the Constitution of India.

19. The High Court has adverted to the decision in SuchitaMurlidhar Kewati[10]. Indeed, the exposition in that decision is in the A

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Acontext of an application filed under Section 14B for a declaration thatthe elected member had incurred disqualification. However, theobservations in paragraph 9 of the reported decision have beencompletely misconstrued and misapplied to the fact situation of the presentcase.B20. Our attention has also been drawn to yet another decision ofthe same Bench of the High Court in Writ Petition No. 12276/2021 decidedon 3.12.2021[11]. In the said judgment, the legal position has been correctlyexpounded that the processes under Section 14B(1) and Section 16 arecompletely different, though concern the matter of disqualification andvacancy arising therefrom. In case, the Collector rejects the complaintCand drops the proceedings in favour of concerned Sarpanch/Member,there would be no question of accrual of any vacancy. In contradistinction,if the Collector declares the member as having incurred disqualification,the follow-up issue required to be considered by the Collector underSection 16 then is to ascertain if any vacancy had arisen because ofDsuch disqualification. The two are different processes.

21. Taking any view of the matter, the opinion of the High Courtin the impugned judgment cannot be countenanced. We conclude thatno remedy of appeal is envisaged against an order of the State ElectionCommission or its delegatee – the Collector, under Section 14B(1),Erejecting the complaint or to drop the proceedings for declaration of aSarpanch/Member having incurred disqualification. That order becomesfinal and if passed by the Collector as the delegatee, is deemed to havebeen passed by the State Election Commission itself. Even the StateElection Commission cannot step in thereafter in any manner much lessin the guise of reconsideration or review of such order. It must followFthat the Divisional Commissioner would have no jurisdiction (ab initio)to entertain assail to such an order of the Collector.

22. We are conscious of the fact that the High Court not onlynegatived the objection regarding jurisdiction of the DivisionalCommissioner to entertain the stated appeals, but also affirmed theGdecision on merits in reversing the order(s) of Collector rejecting theDispute Applications of the respondent No. 2. The fact that the HighCourt ventured into the terrain of dealing with merits of the case, does 11 Shri Gulabrao vs. State of Maharashtra & Ors. - Writ Petition No. 12276/2021Hdecided on 3.12.2021

SHOBHABAI NARAYAN SHINDE v. THE DIVISIONAL COMMISSIONER,NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.]

not require us to examine that question. For, once it is held that theDivisional Commissioner had no jurisdiction to entertain the appeal againstthe order of the Collector under Section 14B(1) rejecting the complaintfiled by the respondent No. 2, no other issue needed examination by theHigh Court at his instance. Resultantly, we decline to go into thecorrectness of the decision of the Collector on merits in rejecting theDispute Applications filed by respondent No. 2, for a declaration that theappellants had incurred disqualification. We also do not wish to dilate onthe plea urged by the respondent No. 2 that the appellants had disentitledthemselves for indulgence of this Court owing to their conduct, as wehave held that the stated order(s) of the Divisional Commissioner arewithout jurisdiction and non-est in law.

23. Accordingly, these appeals succeed. The impugned commonjudgment and order is set aside. As a result, the separate orders passedby the Divisional Commissioner dated 15.7.2019 in the respective appealsare also set aside and instead the writ petitions filed by the appellantsare allowed, thereby restoring the separate orders passed by the Collectordated 5.2.2019, rejecting the stated Dispute Application(s) filed by therespondent No. 2. There shall be no order as to costs.

Bibhuti Bhushan Bose(Assisted by : Preetam Bharti, LCRA)

Appeals allowed.

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