1 (WP 927 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 927 OF 2011 Sau. Vrushali Surendra Narvekar ...Petitioner Vs. The State of Maharashtra and Ors. ...Respondents ----- Mr.P.S. Dani i/b. Mr. A.B. Kadam for Petitioner Mrs. P.S. Cardozo -AGP for Respondent Nos.1 to 4 Mr. P.D. Dalvi for Respondent No.5 ----- CORAM: V.M. KANADE J. DATED: 1ST FEBRUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner, the learned AGP for the Respondent Nos.1 to 4 and the learned counsel for the Respondent No.5. 2. This petition is filed under Article 226 and 227 of the Constitution of India. The Petitioner is challenging the order passed by the Additional Collector, Ratnagiri under the provisions of section 10-1A and 16 of the Bombay Village Panchayat Act, 1958 (hereinafter referred to as “the said Act”), whereby, he held that the Petitioner who was appointed as a Sarpancha pursuant to the 2 (WP 927 of 2011) elections which were held on 26.7.2009, was disqualified, since she has not produced the caste validity certificate within a period of four months from the date of filing of the nomination. 3. Brief facts in nutshell are as under: The elections to the post of Member of Grampanchayat were held on 26.7.2009. In 2009, a vacancy arose to the post of a Member of Grampanchayat. In the said bye-elections, the post was reserved for other backward class. The Petitioner filed her nomination form and her nomination form was accepted and she was declared elected. Since the post of Sarpancha was also a reserved post, the Petitioner belongs to the OBC reserved category, she was appointed as a Sarpancha. On 24.9.2010, the Tahasildar, Ratnagiri filed a report, stating therein that the Petitioner had not filed the Caste Validity Certificate from the Competent Authority within four months and, therefore, the Petitioner was not entitled to continue either as 3 (WP 927 of 2011) Sarpancha or Member of the Grampanchayat. Thereafter, the Additional Collector initiated the proceeding under section 10-1A read with section 16 of the said Act and confirmed the said report. This was challenged in appeal before the Additional Commissioner, who was pleased to confirm the said order by the order dated 24.1.2010. The caste validity certificate, admittedly, was produced by the Petitioner on 15.9.2010. 4. The learned counsel for the Petitioner submitted that the provisos to section 10-1A were deleted by the amendments, which were brought in force with effect from 9th January, 2009, by virtue of the Maharashtra Act No.5 of 2009. It was submitted that, therefore, on the date on which the order was passed by the Additional Collector, the said proviso was deleted from the said section 10-1A and, therefore, the Additional Collector could not have in view of the said provisos, held that the Petitioner was disqualified and that her election was deemed to have been terminated retrospectively and that she was disqualified from being a member. He also submitted that under section 14 of the said Act, a list of disqualifications was mentioned. He submitted that non- 4 (WP 927 of 2011) filing of the caste validity certificate from the Competent Authority was not a disqualification under section 14 of the said Act. He, therefore, submitted that the order passed by the Additional Collector was liable to be set aside. 5. On the other hand, Shri Dalvi , the learned counsel appearing on behalf of the Respondent No.5 submitted that after the impugned order was passed by the Additional Commissioner, a new sarpancha viz. Razak Kazi had taken charge as a sarpancha. Secondly, he submitted that section 10-1A specifically provided that at the time of contesting the election to a seat reserved for Scheduled Caste and Scheduled Tribes or Backward Class, such a person shall be required to submit, along with the nomination paper, the Caste Certificate issued by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Mah. XXIII of 2001). He 5 (WP 927 of 2011) submitted that even if the provisos have been deleted by virtue of the mandatory provisions of section 10-1A, since the Petitioner had not submitted the validity certificate, she was not authorized to contest the said election and, therefore, even otherwise, the Petitioner was disqualified, He submitted that under section 14-1A, also the Petitioner was disqualified. He invited my attention to the said provision. He submitted that similarly, section 30 of the said Act which relates to the election of the sarpancha, a similar provision was made. He, therefore, submitted that by virtue of the provisions of section 16 of the said Act, on account of the said dis- validity, the Petitioner was not continued as a member much-less as a sarpancha of the Grampanchayat. He submitted that by virtue of the subsequent amendment viz. Bombay Village Panchayats (Amendment) Act, 2010, the original position as it existed prior to 9th January, 2009 was restored. He, however, candidly and fairly admitted that the amended provisions would not apply to the facts of the present case. He also relied on the judgment of the Apex Court in the case of Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others [(1999) 8 Supreme Court Cases 16]. He submitted 6 (WP 927 of 2011) that the High Court while exercising writ jurisdiction under Article 226 and 227 of the Constitution of India, should refuse to interfere with an order passed by the Competent Authority which would have the effect of reviving an illegal order and, therefore, this Court has no jurisdiction to restore the membership of the Petitioner who was not competent to contest the election since no caste valid certificate was filed along with the nomination form. 6. I have heard both the counsel at length. Rule. Rule is made returnable forthwith by consent of parties. In my view, after having heard both the counsel at length and after having examined the legal position, I am satisfied that the Additional Collector has clearly committed an error of law which is apparent on the face of record and, therefore, the impugned order passed by the Additional Collector would have to be set aside. Before I consider the rival submissions advanced by the counsel appearing either sides, it would be relevant to take into consideration the said provisions of the said Act. Section 10-1A prior to its amendment by the Maharashtra 7 (WP 927 of 2011) Amendment Act of 2005 upto 2009 reads as under. “Provided further that if the person fails to produce the Validity Certificate withing a period of three months from the date of his election, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a member.” However, by the Amendment Act which has received the assent of the Governor and published in the Gazette on 9th January, 2009, section 10-1A was amended and both the provisos of the said sections were deleted. As a result of the said deletion of the provisos, therefore, the disqualification of not filing the caste validity certificate within a period of four months was deleted. The second proviso to section 10-1A specifically provided that if a person failed to produce caste validity certificate within the prescribed period, his election would be deemed to have been terminated retrospectively and he would be disqualified as a member. As a result of deletion of the said proviso, his termination and disqualification was set aside. It has to be noted here that though sub- 8 (WP 927 of 2011) section (1) provides that along with the nomination paper, a person has to submit a caste validity certificate of a competent authority. By virtue of the said proviso, a specific time limit was granted to produce it, during which period he would stand disqualified for not producing the caste validity certificate. The provisos having been deleted, therefore, the time limit for producing the said certificate was removed. In the present case, the Petitioner produced the caste validity certificate on 15.9.2010. Though she did not file the caste validity certificate along with the nomination form and as a result of production of the said caste validity certificate on 15.9.2010, she was entitled to contest the election, as a result of deletion of the provisos. The submissions made by Shri Dalvi, the learned counsel for the Respondent No.5 that non-production of the said caste validity certificate along with the nomination form was itself fatal and cannot be accepted for these reasons. For the purpose of interpreting the provisions, it has to be seen that what was the intention of the Legislature in deleting the said provisos. Sub-section (1) of section 10-1A provides that it was necessary to file caste validity certificate along with the nomination form. 9 (WP 927 of 2011) The provisos, however, carves out an exception and give additional time to the contesting candidate. The provisos having been deleted, therefore the time limit of producing the said certificate also was removed along with the deletion of the disqualification. The submissions made by the learned counsel appearing on behalf of the Respondent No.5 that, by not filing the caste validity certificate along with the nomination form, the Petitioner stood disqualified at the very stage, cannot be accepted for these reasons. 7. Similarly, in my view, the provisions of section 14 would not apply in this case since by virtue of deletion of provisos. The disqualification and deemed termination of membership which was incorporated in the said provisos having been deleted, and the said disqualification cannot read into the section 14 or section 13 of the said Act. 8. The Additional Collector, simultaneously proceeded on the footing that the provisos to said section were still in existence and on the basis of the non-existent provisos, proceeded to disqualify the Petitioner. The impugned order, therefore can be set side. The judgment 10 (WP 927 of 2011) of the Apex Court on which the reliance is placed by the learned counsel for the Respondent No.5, in my view, will not apply to the present case. The writ petition is, therefore allowed in terms of prayer clause (b) and is, accordingly, disposed of. Consequently, the order passed by the Additional Collector is set aside, and similarly, the order passed by the Additional Commissioner is also set aside. 10. At this stage, the learned counsel for the Respondent No.5 submits that this order may be stayed for the period of four weeks. The said request is declined. (V.M. KANADE J.)