Petitioners challenged rejection of their election nominations for gram panchayat due to missing certificates regarding toilet facilities. The Single Judge held disqualification under the Act is statutory upon non-compliance, not requiring an overt order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.
WRIT PETITION NO. 7440 OF 2015
Punjaram s/o Bapurao Rajale, Age 60 years, occup. Agril., R/o Narayanpur, Tal. Gangapur, Dist. Aurangabad and another ….. Petitioners
versus
The State of Maharashtra & ors. ….. Respondents
Mr. Devdatt P. Palodkar, Advocate for petitioners Mr. V. G.Shelke, Asstt.Govt.Pleader for respondents no.1,3 & 4 Mr. S.T. Shelke, Advocate for respondents no. 2 and 5
CORAM : SUNIL P. DESHMUKH, J. 27TH JULY, 2015
ORDER:
for the reason that the nomination forms had not been accompanied with a resolution of gram panchayat, Narayanpur referring to that the petitioners live in a residential house having toilet facility and is being regularly used by them or, in the absence of the same, they regularly use public toilet facility.
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Narayanpur. He goes on to submit that section 14 of the Act which deals with disqualification only sets out the circumstances under which a person may incur disqualification.
13. Persons qualified to vote and be elected.(1) Every person [who is not less than 21 years of age on the last date fixed for making nomination for every general election or bye-election and whose name is in the list of voters shall, unless disqualified under this Act, or any other law for the time being in force, be qualified to vote at the election of a member for the ward to which such list pertains._
(2) Every person whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected for any ward of the villagte. No person whose name is not entered in the list of voters for such village shall be qualified to be elected for any ward of the village.
(3) Subject to any disqualification incurred by a person, the list of voters, shall be conclusive evidence for the purpose of determining under this Section whether any person is qualified or is not qualified to vote, or as the case may be, is qualified or is not qualified to be elected, at any stage.
“ 14. Disqualification. - (1) No person shall be a member of a Panchayat continue as such, who-
(a)
(i) …....................................... (ii) ..........................................
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(a-1) …....................................... (b) …....................................... (c) …....................................... (c-1) …....................................... (d) …....................................... (e) …....................................... (f) …....................................... (g) …....................................... (h) …....................................... (h-1) …....................................... (i) ….......................................
(j) …....................................... (j-1) …....................................... (j-2) …....................................... (j-3) …....................................... (j-4) ….......................................
(j-5) fails to submit a certificate of the concerned panchayat, along with the resolution of the Gram Sabha certifying that,-
(i) he resides in a house owned by him and has a toilet in such house and he regularly uses such toiled; or
(ii) he resides in a house not owned by him and has a toilet in such house and he regularly uses it or he has no such toilet but regularly uses the public toilet;
Provided that, no member of a panchayat shall be disqualified under this clause, if he submits such certificate to the Block Development Officer, within a period of one year from the 10th January, 2011, being the date of commencement of the Bombay Village Panchayats and Maharashtra Zilla Parishads and Panchayat Samitis (Second Amendment) Act, 2010 (Mah. XXXVII of 2010]”
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“16. Disability from continuing as member. -
(2) If any question whether a vacancy has occurred under this Section is raised by the 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 date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under sub-section (1) from continuing to be a member.] Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appeal shall be final.
Provided that no order shall be passed under this subsection by the Collector against any member without giving him a reasonable opportunity of being heard. ''
“ 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
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present it either in person or through a representative authorities 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.
11. Scrutiny of nominations. (1) At the time and place appointed for the scrutiny of nominations, intending candidates and any other person duly authorised in writing by such intending candidate shall alone be entitled to be present. The Returning Officer shall allow such persons reasonable facilities for examining the nomination papers of intending candidates.
(2) The Returning Officer shall examine the nomination papers and decide all objections which may be made before him to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he considers necessary, reject a nomination paper on any of the following grounds, namely :-
(i) that the candidate is disqualified or is not qualified under the Act or these rules for election; or
(ii) that the candidate has failed to comply with any of the provisions required by these rules or the Act.
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(2-A) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(3) For the purpose of sub-rule (1) the production of a certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified.
------
FORM 'A'
(See rule8)
Nomination Paper
Name of the ward for which the candidate is nominated.
Full name of candidate Age …......................... Address …..................
In the case of a ward in which a seat is reserved for Scheduled Castes or Scheduled Tribes, state whether or not belonging to such castes or tribes for which seat or seat is or are reserved. If members of a Scheduled Caste or Scheduled Tribe, state the name of the caste or tribe.
Name of ward in which candidate is entitled to vote, and his number in the Voters' list.
I hereby declare that I am willing to serve as a member, if elected.
Date: Serial No.
Signature of candidate
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Date on which and time at which nomination paper was delivered to Returning Officer............ ''
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as such' would show that the same would be operative when a person is deficient in respect of requirements under the provisions of section 14(1) and other provisions. [They submit, in the present case, in fact, position emerges to be admitted that the petitioners have failed to produce the requisite documents under section 14(1)(j-5)].
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specifically refers to that unless disqualification under the provisions means and implies statutory disqualification occurring without there being overt-action or that it should be preceded by any quasi-judicial action, the returning officer is within his power and authority while rejecting the nominations as rule 11 empowers him to reject candidature if the person concerned is disqualified under the Act and if he stands disqualified under section 14. The order passed by the returning officer cannot be said to be without power or, for that matter, in excess of power.
SUNIL P. DESHMUKH, J.
pnd
2 issues framed by the court
Whether rejection of nominations for panchayat election due to lack of toilet facility certificates amounts to in excess or colourable exercise of powers under the Maharashtra Village Panchayat Act.
Whether disqualification under Section 14 operates by mere default of compliance without an overt quasi-judicial order.
4 provisions across 2 enactments
Punjaram s/o Bapurao Rajale and another
The State of Maharashtra & ors.
Sunil P. Deshmukh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
