( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5805 OF 2009 Arun s/o Laxmanrao Alne, R/o Kinwat, Tq. Kinwat, District Nanded. PETITIONER VERSUS 1. Returning Officer/Sub Divisional Officer, Kinwat for Election of Municipal of Municipal Council, Kinwat, held in Nov-Dec. - 2007. 2. Laxmipati s/o Bapurao Donepelliwar, R/o Kinwat, Taluka Kinwat, District Nanded. 3. Ashatai Udhavrao Kadam 4. Ashok s/o Gomaji Patil 5. Suresh Dattatraya Mhaske 6. Maroti Kanba Sankalwad Respondents No. 3 to 6 are r/o Kinwat, Taluka Kinwat, District Nanded. RESPONDENTS ..... Mr. R.S. Deshmukh, advocate for the petitioner. Mr. S.T. Shelke, advocate for respondent No. 1. Mr. V.D. Salunke, advocate for respondent No. 2. None for the respondents No. 3 to 6. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 4th March, 2010] [DATE OF JUDGEMENT PRONOUNCED : 9th March, 2010] ( 2 ) JUDGEMENT : 1. By this petition, the petitioner challenges judgement and order rendered by learned Adhoc District Judge-2, Nanded in Election Petition No. 4/2009 whereby and whereunder his election from municipal ward No. 17, Samatanagar, as member of Municipal Council, Kinwat was declared null and void and the respondent No. 2 was declared as the elected candidate in his stead. 2. Municipal Elections were declared in the month of October, 2007 and pursuant thereto, election programme for Municipal Council, Kinwat was published. The nomination forms were required to be submitted before 2nd of November, 2007 uptill 3 p.m. The scrutiny of the nomination forms was scheduled on 3rd November, 2007. The voting was scheduled on 25th November, 2007. The petitioner was declared as elected candidate for ward No. 17 on 27th November, 2007. He had secured largest votes. There were six (6) candidates including the petitioner and the respondents No. 2 to 6 in the ( 3 ) fray. The respondent No. 2 had secured second highest votes. 3. The respondent No. 2 filed Election Petition under section 21 of the Maharashtra (Municipal Councils), (Nagar Panchayats) and (Industrial Townships Act, 1965 (for short, “the Municipal Councils Act”). He challenged election of the petitioner on the ground that the nomination form was not accompanied by valid affidavit as required under the guidelines of the Election Commission. He further asserted that the affidavit was invalid since required adhesive stamps were not affixed as per provisions of the Bombay Stamp Act, 1958. He further asserted that the nomination form was incomplete in as much as the information as required in one of the forms was not filled in by the petitioner. He alleged that the petitioner was ineligible to contest the municipal election as member of the Municipal Council because he had incurred disqualification under section 44 (1) (e) of the Municipal Councils Act. The District Collector had rendered order dated 11th October, 2006 whereby the petitioner was disqualified to continue ( 4 ) as Member of the Municipal Council for the remainder of term. It was alleged that the stigmatic disqualification had continued and, therefore, the petitioner could not be allowed to contest the municipal election nor was eligible to continue in the office. The respondent No.2, therefore, sought declaration that the election of the petitioner was null and void and the same stood cancelled. He further sought declaration that he may be declared as elected candidate from ward No. 17 or alternatively sought afresh election for the said ward. 4. The petitioner denied all the material averments made by the respondent No. 2. He pointed out that the order of the Collector, passed under section 44 (1) (e) of the Municipal Councils Act, was set aside by the Hon’ble the Chief Minister in appellate jurisdiction under section 44 (4) of the Municipal Councils Act, vide order dated 21st May, 2008. He, therefore, submitted that the disqualification could be held as de-clamped. He denied that the affidavit filed alongwith the nomination papers was invalid. The petitioner alleged ( 5 ) that he was framed in a false criminal case because he is member of scheduled caste and the political foes could not tolerate his presence in the Municipal Council. Consequently, he urged for the dismissal of the Election Petition. 5. The learned Adhoc District Judge-2 held that as on the date of filing the nomination form, the petitioner was ineligible due to disqualification incurred by him vide order dated 11th October, 2006 passed by the Collector under section 44 (1) (e) of the Municipal Councils Act. The learned Adhoc District Judge further held that nomination of the petitioner was invalid for yet another reason that the affidavit sworn in by him was not in keeping with the guidelines issued by the Election Commission and there was no proper stamp affixed to that affidavit. On these grounds, the election of the petitioner was set aside by allowing the Election Petition. The learned Adhoc District Judge held that since the respondent No. 2 had secured second highest votes, there was no necessity to order re- election for ward No. 17 of the Municipal Council. ( 6 ) Hence, the Election Petition was allowed, the election of the petitioner was cancelled and in his place, the respondent No. 2 was declared as elected candidate. 6. Heard learned counsel for the contesting parties. Though the respondents No. 3 to 6 were served, yet, none of them appeared. 7. To clear the deck, it may be stated that the petitioner had challenged the order rendered by the Collector under section 44 (1) (e) whereby he was disqualified to continue as Member for the remaining term of the Municipal Council. The remaining term was to come to an end after fresh elections which were to be held on 25th November, 2007. The legal impact of the order dated 11-10-2006 passed by the Collector was that the petitioner’s office could be deemed as vacated by him. It was alleged that he had illegally encroached over certain municipal land by fixing barbed wire fencing around compound of his constructed building. The Collector found that though the petitioner was called upon to demolish wall and remove the barbed wire ( 7 ) fencing, yet, he had not complied with such directions and, therefore, had incurred disqualification under section 44 (1) (e). The petitioner was prosecuted vide a criminal case (R.C.C. No. 52/2003) for the alleged offence punishable under section 52 (1) of the Municipal Councils Act. It is undisputed that the learned Judicial Magistrate (F.C.), Kinwat acquitted him of the said charge as per judgement dated 28th September, 2007 after due trial. There is no dispute about the fact that the petitioner had preferred appeal under section 44 (4) of the Municipal Councils Act. The Hon’ble the Chief Minister, by order dated 21st May, 2008 (Exh-E), allowed his appeal. 8. Questions involved in this petition are : (i) Could it be said that the petitioner was ineligible and disqualified to contest the municipal election for the reason that at the time of filing of nomination form, the adverse order rendered under section 44 (1) (e) of the Municipal Councils Act was in existence ? ( 8 ) (ii) Whether the nomination of the petitioner was patently illegal due to alleged defects noticed from the supportive affidavit filed by him alongwith the nomination papers ? (iii) Was it legally permissible for the Court below to declare the respondent No. 2 as an elected candidate when there were more than two (2) candidates in the fray and the case was not of recrimination or causing of votes in favour of the petitioner due to any corrupt practice ? 9. True, the petitioner did not file copy of stay order before the learned Adhoc District Judge during the course of hearing of the Election Petition and, therefore, such copy of the order dated 8th November, 2006 cannot be looked into while deciding the present petition. The written statement of the petitioner did not refer to the fact that the Collector’s order dated 11th October, 2006 was stayed by the competent authority ( 9 ) on 8th November, 2006. Obviously, there was no warrant for the learned Adhoc District Judge to assume that there was stay granted by the competent authority and, therefore, the Collector’s order could not be considered so as to infer disqualification of the petitioner. The petitioner seems to have neglected in raising plea in the context of the interim stay order issued by the competent authority. Still, however, it cannot be overlooked that the petitioner had categorically pleaded that the Collector’s order dated 11th October, 2006 was set aside by the competent authority i.e. the Hon’ble the Chief Minister by virtue of order dated 21st May, 2008. This fact was brought to the notice of the learned Adhoc District Judge. He had further pointed out that he was acquitted by the Criminal Court in the criminal case bearing R.C.C. No. 52/2003. The learned Adhoc District Judge observed that though the disqualification order was set aside by the Hon’ble the Chief Minister on 21st May, 2008, yet, the stigma of disqualification was very much present as on the date of filing of the nomination form i.e. on 2nd November, 2007. Thus, inspite of removal of the disqualification as per ( 10 ) order dated 21st May, 2008 in appeal under section 44 (4) of the Municipal Councils Act, the petitioner was held disqualified for the purpose of his nomination as a candidate for ward No. 17. 10. Mr. Salunke, learned counsel for the respondent No. 2 contended that the petitioner was disqualified due to the juxtaposition available as on the date of filing of the nomination form in view of section 16 (1) (a-1) (ii) of the Municipal Councils Act. He argued that the stigmatic disqualification might have been de-clamped subsequently on 21st May, 2008, yet, the nomination form of the petitioner could not have been accepted on 2nd November, 2007 and hence, he was ineligible to contest the municipal election. Mr. Salunke would submit that the very foundation of the nomination of the petitioner was illegal and, therefore, the view taken by the learned Adhoc District Judge cannot be faulted with. I do not agree. The learned Adhoc District Judge ought to have properly appreciated the legal impact of the order rendered by the appellate authority. It is well settled that when an appeal is allowed and the order under ( 11 ) appeal is set aside, then it stands legally vanished from the day one of such order. It does not become valid for the period between passing of the order and the order of the appellate authority whereby it comes to an end. It mean to say, the order of the Collector ought to have been held as retrospectively wiped out due to the appellate order dated 21st May, 2008 which stood merged in the order of the lower authority. 11. In “Baby Samuel v. Tukaram Laxman Sable and others” 1995 Supp (4) S.C.C. 215, the Apex Court held that once the removal order in relation to the President of Municipal Council was set aside, the consequential action alongwith the removal order cannot stand. The Apex Court observed : “Because the State Government did not pass any orders on the stay petition filed by the appellant in his appeal preferred against the orders of removal/disqualification, the Collector notified and held an election to the office of the President whereat Shri Sable was elected as President. This election was again ( 12 ) a consequence of the removal/disqualification of the appellant by the Collector. If so, once the order of removal/disqualification is set aside by the Government, the appellant is entitled to be put back in the same position which he was in before he was removed. In other words not only should he be restored to the Councillorship but also to the office of the President, Shri Sable was elected as the President in the vacancy caused by the removal/disqualification of the appellant and once the said removal/disqualification of the appellant goes, the consequential action cannot stand; it falls to ground along with the order of removal, Shri Sable must therefore yield ground to the appellant.” 12. The learned Adhoc District Judge committed patent error while holding that the petitioner was ineligible to contest the election on account of disqualification under section 44 (1) (e) of the Municipal Councils Act as per order of the Collector. It is worthwhile to notice the purport of section 16 of the Municipal Councils Act. Admittedly, the petitioner was not convicted for any offence at the relevant time and no other provision except section 16 (1) (a-1) (ii) ( 13 ) of the Municipal Councils Act can be considered so as to examine whether he was disqualified for becoming councillor. Section 16 (1) (a-1) (ii) reads as follows: “16. Disqualifications for becoming Councillor.- (1) No person shall be qualified to become a Councillor whether by election, or nomination, who, - (a-1) has been so disqualified by or under any law,- (i) ***** (ii) made by the legislature of the State of Maharashtra; or; (a) has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release; or (aa) has at any time after the commencement of the Maharashtra Municipalities and other Provisions (Amendment) Act, 1974, (Mah. IV of 1974), been convicted of an offence punishable under Section 153-A, or sub-section (2) or (3) of section 505, of the Indian Penal Code, unless a period of five ( 14 ) years has elapsed since the date of such conviction; or (ab) has been convicted of an offence punishable under the Untouchability (Offenes) Act, 1955 (XXII of 1955) and sentenced to imprisonment for any term or fine unless a period of (six years), has elapsed since his release; or (ac) has been convicted by a Court in India of any offence involving moral turpitude unless a period of (six years), has elapsed since the date of such conviction; or (b) has been removed from office under section 42 and (six years) have not elapsed from the date of such removal, unless he has, by an order made by the State Government in this behalf, been relieved earlier from the disqualification arising on account of such removal from office; or (ba) has been found guilty of misconduct in the discharge of his duties, or being guilty of any disgraceful conduct while holding the office of the President or Vice- President of the Council unless the period of disqualification provided under Section 55 B has lapsed. (c) is an undischarged insolvent; or (d) is of unsound mind and stands so declared by a competent Court; or ( 15 ) (e) has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign State; or (f) is a Judge; or (g) is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority; or (ga) if, having held any office under any Government or local authority has, whether before or after the commencement of the Maharashtra Municipalities and other Provisions (Amendment) Act, 1974, (Mah. IV of 1974), been dismissed for misconduct, unless a period of five years has elapsed since his dismissal; or (h) is in arrears (otherwise than as a trustee) of any sum due by him to the Council after the presentation of bill therefor to him under section 150; or (ha) has not paid any sums due, whether surcharged or charged, under the provisions of the Bombay Local Fund Audit Act, 1930 Bom. XXV of 1930; (i) save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Council or in any contract ( 16 ) with or under or by or on behalf of a Council; or (j) save as hereinafter provided, has directly or indirectly, by himself, or his partner any, share or interest in any transaction of loan of money advanced to, or borrowed from, any officer or servant of the Council. (k) has more than two children; Provided that a person having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (second Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such commencement”) shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase; Provided further that a child or more than one child born in a Single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause. Explanation : ***** (l) is a member of the State Legislature or of Parliament; ( 17 ) Provided that nothing in this Clause shall affect the membership of a sitting Councillor till the expiry of his current term of office as such Councillor; Provided further that any action, taken by such councillor during the period from the 7th October 2001 till the 20th October 2001, being the date of publication of the Maharashtra Municipal Corporation and Muncipal Councils (Amendment) Ordinance, 2001, shall be deemed to have been validly taken and shall not be challenged in any court of law only on the ground that during the said period he had incurred disqualification under this clause.” 13. The comparative reading of section 16 and section 44 of the Municipal Councils Act would make it manifestly clear that they operate in distinct fields. It is conspicuous that section 44 deals with disqualification of Councillor who is already elected and holding the office, during midst of the term of office. If he is found to have incurred disqualification during the period of holding the office, then he can be regarded as disqualified to continue as Member for the remainder of the term. In ( 18 ) the present case, the petitioner could be regarded as disqualified to hold the office as a Councillor for further term which had remained after 11th October, 2006. It is undisputed that the subsequent elections were declared in the month of October, 2007 and the results were declared on 27th November, 2007. The effect of disqualification under section 44 could not be continued for the next term. The expression “he shall be disabled subject to the provisions of sub-section (3) from continuing to be a Councillor and his office shall become vacant” as used in section 44 (1) would mean that the Councillor would be discontinued to remain as such. The disqualification under section 16 does imply ineligibility to become a Councillor either by election or nomination. In my humble opinion, disqualification to contest the election is one thing and the disqualification to continue as elected Councillor for remaining term of the office is another thing. Mr. Salunke invited my attention to section 40 and section 41 of the Municipal Councils Act. The term of office of the Councillor, no doubt, would be co-terminus with the duration of the Council. However, a disqualified ( 19 ) Councillor, against whom order under section 44 is rendered, cannot continue to remain in the office and his office immediately shall become vacant as specifically provided vide section 44 (1). In this view of the matter, deeming effect is given to the end of term of the office of such disqualified Councillor. Needless to say, the petitioner’s term could be deemed to have come to an end on 11th October, 2006 when the District Collector declared him disqualified from holding the office as Councillor. The election only for ward No. 17 could be ordered thereafter. It appears, however, that general elections were declared lateron in the month of October, 2007 and simultaneously, the election of ward No. 17 was also to be held. 14. The period of disqualification under section 44 (1) (e) cannot be extended beyond the remaining term of the office as a Councillor. In “Smt. Sayali Sanjay Malwankar v. Chief Officer and others” 2004 (2) ALL M R 346, a Single Bench of this Court held that the disqualification under section 44 (1) (e) of the ( 20 ) Municipal Councils Act is operative for remaining term. It was held that disqualification ordered by the Collector for five years was illegal. This Court held that in the absence of a statutory power, the Collector could not have disqualified the petitioner, in that case, for a further period of five years. The petitioner – Smt. Sayali was disqualified for period of five years w.e.f. the date of the Collector’s order on account of disqualification under section 44 (1) (e). This Court held that the disqualification of such a Councillor could be only to the extent of the remaining term and not in future. The Court observed that whether petitioner Smt. Sayali can lawfully contest an election in future, so long as the unauthorized construction continues to exist, was not required to be decided in the said proceedings. 15. In the fact situation of the present case, had the petitioner continued to maintain the unauthorized construction, probably his disqualification to contest the election could be the question for determination. It need not be reiterated that the petitioner was ( 21 ) acquitted of the criminal charge for alleged illegal construction/encroachment. He was also held not a disqualified Councillor by the appellate authority. Under these circumstances, he could not be regarded as ineligible to contest the election for the next term i.e. commencing after the first meeting of the Municipal Council which could be scheduled after 27th November, 2007. For, if it is held that he was disqualified for the next term of five (5) years too, then it would amount to the disqualification under section 44 (1) (e) of the Municipal Councils Act for a period beyond the term of earlier office which could be deemed as vacated by him after 11th October, 2006 for the remainder period ending by November, 2007. In the absence of any such specific power available to the Collector, the period of such disqualification cannot be extended beyond the earlier term of the office and, therefore, it will have to be said that the petitioner could not be regarded as ineligible to contest the election of the Municipal Council at the relevant time for the next term. As stated before, even otherwise due to de-clamping of the disqualification ordered by the Collector, as a result ( 22 ) of the appellate order, he was legally eligible to file the nomination form to contest the election of Municipal Council at the relevant time. This kind of retrospective removal of disqualification ought to have been duly appreciated by the trial Court when the appellate order was placed on record. For all these reasons, it will have to be said that the learned Adhoc District Judge committed patent error while holding that the petitioner incurred stigma and was disqualified from contesting the election. 16. The next ground for setting aside the election was that the affidavit filed by the petitioner alongwith the nomination form was defective for two (2) reasons. First, one of the paper of the affidavit in the form was kept blank. Secondly, the affidavit did not bear adhesive stamps as contemplated under the Bombay Stamp Act, 1958, required for a valid notarial document. The respondent No. 2 raised these two grounds in the Election Petition, claiming that the nomination form ought to have been rejected at the time of scrutiny itself. It may be noticed that no such objection was ( 23 ) raised at the time of the scrutiny of the nomination papers. Clinching question is whether the defects shown to