Case: LAXMIBAI Vs. THE COLLECTOR, NANDED & ORS

HEMANT GUPTA, J. Civil Appeal @ SLP(C) No. 16837 of 2019 1. Leave granted. 2. The challenge in the present appeal is to an order dated 10 th December, 2018 passed by the learned Single Bench of the High Court of Judicature at Bombay dismissing the writ petition filed by the appellant against an order of disqualification under Section 14B of the Maharashtra Village Panchayats Act, 1959 for short, 1959 Act on account of non-submission of election expenses within the period prescribed. 3. The election of Gram Panchayat, Mugat, T aluk Mudkhed, District Nanded were held on 1 st November, 2015. The results were declared on 4 th November, 2015. The appellant was elected as a Member of Village Panchayat. The appellant was required to furnish election expenses within 30 days in the manner prescribed by the State Election Commission in terms of Section 14B of the 1959 Act. The appellant submitted expenses with delay of 15 days. The appellant was served with a show cause notice on 3 rd March, 2016 as to why she should not be disqualified on account of failure to submit the election expenses. The appellant submitted her explanation that due to ill-health there was a delay of 15 days in furnishing of details of expenses and that delay may be condoned. 4. The Collector as a delegate of the State Election Commission passed an order dated 9 th August, 2018 disqualifying the appellant for a period of five years to be a member of Gram Panchayat only for the reason that the appellant has not submitted election expenses within time. 5. The appeal against such order was dismissed on 19 th November, 2018 by the Additional Divisional Commissioner, Aurangabad for the reason that the medical certificate is not issued by the Competent Authority. The said order was challenged before the Writ Court wherein the High Court held as under: 5. The learned counsel for the petitioner has tendered a copy of medical certificate on which petitioner had relied upon. The same is taken on record and marked X for identification. This document has no particulars whatsoever, such as name, diagnosis, date and reference number etc. There is nothing mentioned. This certificate issued by a private hospital bears only a stamp of the doctor. It is stated that the petitioner was suffering from hypertension, diabetes and was advised bed rest. This document, on the face of it, cannot be relied upon. If the authorities have not accepted such a document, there is no error in the view taken by them. 6. Learned counsel for the appellant vehemently argued that the appellant was advised bed rest on account of hypertension and diabetes, which fact caused unintended delay of furnishing of election expenses. It is also argued that the appellant is duly elected member of Panchayat and that an order of disqualification can be passed if the candidate fails to show any good reason or justification for the failure to submit accounts. It is also submitted that there is no finding that the accounts furnished, though with delay of fifteen days, are not proper or not in accordance with applicable rules or instructions. The order of disqualifying her for five years, in fact, jeopardises her right to contest election until 8 th August, 2023 (i.e. from the date of the order passed on 9 th August, 2018). 7. It is argued that since the appellant is a duly elected representative of Village Mugat and has been elected in a democratic process, the disqualification for a period of five years without taking into consideration the extent of default and the consequences of disqualification renders the order of disqualification as wholly disproportionate to the deficiency alleged against the appellant. It is argued that an order of disqualification should have been passed without delay and not nearly after 3 years of the elections. It is further argued that disqualification for a period of five years is the maximum period of disqualification whereas in terms of sub-section (2) of Section 14B of the 1959 Act, the disqualification can be for a period less than five years. Therefore, the authority was expected to consider the nature and extent of default and consequent period of disqualification, which should be commensurate with the default found by such authority. The relevant Section 14B of the 1959 Act reads thus: 14B. Disqualification by State Election Commission. – (1) If the State Election Commission is satisfied that a person, - (a) has failed to lodge an account of election expenses within the time and in the manner 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 a member of panchayat or for contesting an election for being a member for a period of five years from the date of this order. (2) The State Election Commission may, for reasons to be recorded, remove any disqualification under sub- section (1) or reduce the period of any such disqualification. 8. A bare perusal of Section 14B of the 1959 Act shows that the State Election Commission is to be satisfied as to whether a person has no good reason or justification for the failure to furnish account of election expenses. Secondly, in terms of sub-section (2), for the reasons to be recorded, the disqualification under sub-section (1) can be removed or the period of disqualification can be reduced. 9. The Collector passed an order on 9 th August, 2018 not accepting the explanation for the delayed submission of the election expenses. In appeal, learned Additional Divisional Commissioner found that the medical certificate is not issued by the Competent Authority and the matter has been verified by the Collector. The appellant has not submitted the election expenses within stipulated time, therefore, there is no error in the order passed by the Collector. The High Court in the writ petition found that the medical certificate has no particulars whatsoever such as name, diagnosis, date and reference number etc. The certificate is issued by a private hospital and bears only a stamp of doctor. Such document was not accepted as reasonable explanation for not submitting the election expenses within time. We find that the explanation in delayed submission of election expenses has not been accepted. Therefore, we do not find any reason to take a different view than the view affirmed by the High Court in the writ petition filed by the appellant. 10. However, the question which arises is that whether delay of 15 days necessarily follows the disqualification for a period of five years. Learned counsel for the appellant submitted that the order of disqualification was passed by the Collector approximately 3 years after the election and there were only two dates of hearing for more than two years apart. Therefore, inordinate delay in pronouncing the disqualification order on the part of the Collector severely prejudices the appellant as the period of disqualification starts from the date of the order. However, the learned counsel for the respondents relies upon judgment of this Court reported as Union of India & Ors. v. A.K. Pandey (2009) 10 SCC 552 to contend that the mandate of Section 14B of the 1959 Act is disqualification and the word may have to be read as shall. 11. We do not find any merit in the argument that Section 14B of the 1959 Act is mandatory. Sub-section (1) of Section 14B of the said Act empowers the State Election Commission to pass an order of disqualification of a candidate, if the candidate fails to lodge account of election expenses for lack of good reason or without any justification. Such satisfaction is required to be recorded by the Election Commission. The disqualification for a period of five years is not necessary consequence of merely not filing account of election expenses. Still further, subsection (2) empowers the State Election Commission for reasons to be recorded, remove any disqualification under sub-section (1) or reduce the period of any such disqualification. Since authority is vested with power to reduce the period of disqualification, therefore, makes the provision directory. 12. This Court in A.K. Pandey held that the prohibitive or negative words are ordinarily indicative of mandatory nature of the provision although said fact alone is not conclusive. This Court held as under:- 15. The principle seems to be fairly well settled that The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word shall is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. ………………. 13. In the present case, there is no prohibitive or negative expressions used in Section 14B of the 1959 Act, as it empowers the Election Commission to pass a just order of disqualification. Such provision cannot be treated to be mandatory period of five years in view of plain language of the Statute. 14. It is urged by learned counsel for the appellant that the disqualification is disproportionate to the default committed by the appellant. In a judgment reported as D. Venkata Reddy v. R. Sultan & Ors. (1976) 2 SCC 455 , it was held that the election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. The challenge in the said appeal was to an election on the allegation of corrupt practices. This Court held that the valuable verdict of the people at the polls must be given due respect and should not be disregarded on vague, indefinite, frivolous or fanciful allegations. The onus lies heavily on the election petitioner to make out a strong case for setting aside an election. The election results cannot be lightly brushed aside in election disputes. At the same time, it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act. The Court held as under: 3. Mr P . Bassi Reddy learned Counsel for the appellant has assailed before us the findings of the High Court on Issues 7, 26 and 27 as these were the only issues which affected the appellant. Mr B. Shiv Sankar, learned Counsel for the contesting respondent has endeavoured to support the judgment of the High Court by submitting that the findings arrived at by the High Court were based on a correct and proper appreciation of the evidence and the facts and circumstances of the record. In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes. At the same time it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act. 15. This Court in a judgment reported as State of Punjab v. Baldev Singh (1999) 6 SCC 172 held that issue of removal of an elected office bearer has serious repercussion. It implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. It was held that severer the punishment, greater care has to be taken to see that all the safeguards provided in a statute are scrupulously followed. 16. In Tarlochan Dev Sharma v. State of Punjab & Ors. (2001) 6 SCC 260 , this Court has held that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the returned candidate but also his constituency or electoral college. Therefore, the procedure prescribed must be strictly adhered to and unless a clear case is made out, there cannot be any justification for his removal. 17. In Ravi Yashwant Bhoir v. District Collector, Raigad & Ors. (2012) 4 SCC 407 , this Court held that an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law. Where the statutory provision has very serious repercussions, it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. It was held as under: 35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691 : AIR 1982 SC 983 ] , Mohan Lal Tripathi v. District Magistrate, Rae Bareily [(1992) 4 SCC 80 : AIR 1993 SC 2042 ] and Ram Beti v. District Panchayat Raj Adhikari [(1998) 1 SCC 680 : AIR 1998 SC 1222 ] ). 36. In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office- bearer but his constituency/electoral college is also deprived of representation by the person of their choice. 37. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like no confidence motion, etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period. 18. The judgments relate to the procedure to be followed in election petition and proof of allegation but such principles are to be followed in the case of inflicting punishment of disqualification, which has far serious implication almost similar to indulging in corrupt practices in an election. The purity and transparency in election process does not give unbridled and arbitrary power to the Election Commission to pass any whimsical order without examining the nature of default. The extent of period of disqualification has to be in proportion to the default. The Election Commission has to keep in mind that by such process, an election of duly elected candidate representing collective will of the voters of the constituency is being set at naught. 19. In a judgment reported as Chief Executive Officer, Krishna District Co-op. Central Bank Ltd. v. K. Hanumantha Rao (2017) 2 SCC 528 , this Court held that the limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a concept of judicial review. If the punishment is so disproportionate that it shocks the judicial conscience, the court would interfere. The relevant extract reads as under: 7.2 Even otherwise, the aforesaid reason could not be a valid reason for interfering with the punishment imposed. It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes. 7.2.1 No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well- recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. [See State of Jharkhand v. Kamal Prasad, (2014) 7 SCC 223 ]. It would also be apt to extract the following observations in this behalf from the judgment of this Court in Kendriya Vidyalaya Sangthan v. J. Hussain, (2013) 10 SCC 106 : (SCC pp. 110-12, paras 8-10) 8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate authority departmentally is ordinarily not available to the Court or a tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra and Nagar Haveli v. Gulabhia M. Lad, (2010) 5 SCC 775 ). In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. xx xx xx 10. An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 . Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that all powers have legal limits invoked the aforesaid doctrine in the following words : (SCC p. 620, para 25) 25. … The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. 20. The disqualification of a candidate for five years passed under Section 14B of the 1959 Act leads to disqualification for future election as well. Though, Section 14B of the 1959 Act empowers the Commission to disqualify a candidate for a period not exceeding five years from the date of the order, but to pass an order of disqualification for five years, which may disqualify him to contest the next elections as well requires to be supported by cogent reasons and not merely on the fact of not furnishing of election expenses. We find that the order of disqualification for a period of five years is without taking into consideration the extent of default committed by the appellant and that the will of people is being interfered with in the wholly perfunctory way. We find that such mechanical exercise of power without any adequate reasons, though required to be recorded, renders the order of disqualification for a period of five years as illegal and untenable. It is abdication of power which is coupled with a duty to impose just period of disqualification. Therefore, though the appellant could be disqualified for a period upto five years, but we find that such period of disqualification must be supported by tangible reasons lest it would border on being disproportionate.

Decision reasoning: 1[ds]8. A bare perusal of Section 14B of the 1959 Act shows that the State Election Commission is to be satisfied as to whether a person has no good reason or justification for the failure to furnish account of election expenses. Secondly, in terms of sub-section (2), for the reasons to be recorded, the disqualification under sub-section (1) can be removed or the period of disqualification can be reduced9. The Collector passed an order on 9 th August, 2018 not accepting the explanation for the delayed submission of the election expenses. In appeal, learned Additional Divisional Commissioner found that the medical certificate is not issued by the Competent Authority and the matter has been verified by the Collector. The appellant has not submitted the election expenses within stipulated time, therefore, there is no error in the order passed by the Collector. The High Court in the writ petition found that the medical certificate has no particulars whatsoever such as name, diagnosis, date and reference number etc. The certificate is issued by a private hospital and bears only a stamp of doctor. Such document was not accepted as reasonable explanation for not submitting the election expenses within time. We find that the explanation in delayed submission of election expenses has not been accepted. Therefore, we do not find any reason to take a different view than the view affirmed by the High Court in the writ petition filed by the appellant11. We do not find any merit in the argument that Section 14B of the 1959 Act is mandatory13. In the present case, there is no prohibitive or negative expressions used in Section 14B of the 1959 Act, as it empowers the Election Commission to pass a just order of disqualification. Such provision cannot be treated to be mandatory period of five years in view of plain language of the Statute20. The disqualification of a candidate for five years passed under Section 14B of the 1959 Act leads to disqualification for future election as well. Though, Section 14B of the 1959 Act empowers the Commission to disqualify a candidate for a period not exceeding five years from the date of the order, but to pass an order of disqualification for five years, which may disqualify him to contest the next elections as well requires to be supported by cogent reasons and not merely on the fact of not furnishing of election expenses. We find that the order of disqualification for a period of five years is without taking into consideration the extent of default committed by the appellant and that the will of people is being interfered with in the wholly perfunctory way. We find that such mechanical exercise of power without any adequate reasons, though required to be recorded, renders the order of disqualification for a period of five years as illegal and untenable. It is abdication of power which is coupled with a duty to impose just period of disqualification. Therefore, though the appellant could be disqualified for a period upto five years, but we find that such period of disqualification must be supported by tangible reasons lest it would border on being disproportionate31. Similar argument has been examined in an appeal preferred by Laxmi Bai. For the reasons recorded therein, we find that the order of disqualification for a period of five years is illegal and untenable and cannot be sustainedWe do not find any merit in the said argument. The election expenses are sought to maintain purity of election and to bring transparency in the process. The voters must know everything about his candidate during and post elections. Therefore, such judgment which deals with excise duty is not applicable to the facts of the present case35. The High Court followed its earlier judgment reported as Gokul Chandanmal Sangvi v. State of Maharashtra and Others 2018 (4) Mh LJ 911, holding that the disqualification incurred by a candidate will entail disqualification to contest an election under 1959 Act in terms of Section 13 of the said Act. Since the appellant has been disqualified under the provisions of 1961 Act, therefore, such disqualification is a disqualification for the purposes of the elections under 1959 Act as well. Therefore, the appellant could not contest elections for Gram Panchayat having been disqualified for a period of five years under the 1961 Act. We see no reason to disagree with the findings of the High Court in this respect43. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 ofthe Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference.