Case: SHOBHABAI NARAYAN SHINDE Vs. THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK &amp; ORS

3. Briefly stated, the appellants contested elections held in September, 2018 for electing a new Panchayat. The appellant in appeal arising out of SLP (C) No. 295/2021 had been directly elected as a Sarpanch of Village Panchayat, Kusumba, Taluka and District Dhule in the State of Maharashtra, from public, whereas, the appellant in appeal arising out of SLP (C) No. 451/2021 was elected as a member of the same 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, seeking declaration under Section 14B(1) - that the appellants herein stood disqualified for not submitting the election expenses within the stipulated time. The Collector, after considering the relevant material and the submissions of the rival parties, rejected both the Dispute Applications by separate judgment and order dated 5.2.2019 being devoid of merits.        5. The respondent No. 2 thereafter carried the matter in appeal before the Divisional Commissioner, Nasik Region, Nasik (for short, the Divisional Commissioner) , questioning the correctness of the rejection of his Dispute Applications by the Collector. The Divisional Commissioner allowed both the appeals by separate judgment and order dated 15.7.2019 and thereby declaring the appellants as disqualified and ineligible to remain as Gram Panchayat Sarpanch/Member.       6. Feeling aggrieved, the appellants filed writ petitions before the High Court of Judicature at Bombay Bench at Aurangabad (for short, the High Court) being Writ Petition Nos. 9244/2019 and 9245/2019.       7. As common question had arisen for consideration, the High Court vide impugned common judgment and order dated 17.12.2020, dismissed both the writ petitions and affirmed the order of disqualification passed by the Divisional Commissioner against the appellants herein.        8. The principal challenge before the High Court was about the jurisdiction of the Divisional Commissioner to entertain the appeals as filed by the respondent No. 2. For, the 1959 Act does not provide for an appeal against the order passed by the Collector under Section 14B(1) in rejecting the application for declaring the incumbent member as disqualified. Further, the remedy provided for consequent to the decision of the Collector under Section 14B(1) before the Divisional Commissioner, is limited to removing the disqualification or reducing the period of any such disqualification. However, in a case where the Collector rejects the application for disqualification of Sarpanch/Member, no further remedy of appeal is provided for in the 1959 Act. The High Court negatived this contention and opined that it was open to the aggrieved applicant(s) to assail such decision of the Collector, by way of an appeal under Section 14B(2) before the Divisional Commissioner. To buttress this conclusion, the High Court drew analogy from remedy of appeal against order of Collector under Section 16(2) before the Divisional Commissioner under Section 16(2) and then adverted to the decision in Suchita Murlidhar Kewati (Sarpanch) & Ors. vs. State of Maharashtra & Ors. 2013 (6) Mh.L.J. 414 Further, having rejected the objection regarding jurisdiction of the Divisional Commissioner to entertain the appeal(s), the High Court proceeded to affirm the view taken by the Divisional Commissioner of reversing the decision of the Collector, on merits. Accordingly, the writ petitions filed by the appellants came to be dismissed.

Reasoning:
14. The power of the State Election Commission, bestowed under sub-Section (1) or (2) of Section 14B, though concerns subject of disqualification of a person, it operates in two different silos. In that, the power under Section 14B(2) gets triggered only after an order of disqualification is passed under Section 14B(1). The former is not activated at all in a case where the application or the proceedings to declare the Sarpanch/Member as disqualified, is rejected or dropped. Taking any other view would inevitably result in a situation where the power exercised by the State Election Commission under Section 14B(1) could be appealed against before itself (its delegatee). That cannot be countenanced. For, an appeal cannot lie before the same Authority/functionary who had passed the order of rejection of prayer to declare the member concerned as disqualified. Sans an express statutory intent to provide appeal against the order rejecting application to declare a person disqualified, it must follow that upon passing such order the power under 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 regarding disqualification, cannot sit in appeal over its own order of rejection. Notably, there is no express power bestowed upon the State Election Commission or its delegatee to review its own decision passed under Section 14B(1) or 14B(2) of the Act, as the case may be. The argument of the respondent No. 2 that the power bestowed on the Divisional Commissioner under Section 14B(2) posits power to impose disqualification 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 be rejected. Similarly, we reject the argument of the respondent No. 2 that it is a case of Casus Omissus. Whereas, the legislative intent and the setting in which the relevant provisions are couched leaves no manner of doubt that such power had not been given to the delegatee (Divisional Commissioner), as it does not inhere in the State Election Commission itself.16. The High Court, however, answered the question by referring to the logic under Section 16(2) of the Act. We hasten to observe that the High Court posed a wrong question to itself in paragraph 2 of the impugned judgment (whether the Divisional Commissioner had jurisdiction to entertain an appeal under Section 16(2) against an order of Collector under Section 14B(1) refusing to disqualify a Sarpanch/Member), and as a result of which arrived at the wrong conclusion.19. The High Court has adverted to the decision in Suchita Murlidhar Kewati (supra at Footnote No. 4). Indeed, the exposition in that decision is in the context of an application filed under Section 14B for a declaration that the elected member had incurred disqualification. However, the observations in paragraph 9 of the reported decision have been completely misconstrued and misapplied to the fact situation of the present case.20. Our attention has also been drawn to yet another decision of the same Bench of the High Court in Writ Petition No. 12276/2021 decided on 3.12.2021 (Shri Gulabrao vs. State of Maharashtra & Ors. - Writ Petition No. 12276/2021 decided on 3.12.2021). In the said judgment, the legal position has been correctly expounded that the processes under Section 14B(1) and Section 16 are completely different, though concern the matter of disqualification and vacancy arising therefrom. In case, the Collector rejects the complaint and 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 under Section 16 then is to ascertain if any vacancy had arisen because of such disqualification. The two are different processes.21. Taking any view of the matter, the opinion of the High Court in the impugned judgment cannot be countenanced. We conclude that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee – the Collector, under Section 14B(1), rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification. That order becomes final and if passed by the Collector as the delegatee, is deemed to have been passed by the State Election Commission itself. Even the State Election Commission cannot step in thereafter in any manner much less in the guise of reconsideration or review of such order. It must follow that 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 only negatived the objection regarding jurisdiction of the Divisional Commissioner to entertain the stated appeals, but also affirmed the decision on merits in reversing the order(s) of Collector rejecting the Dispute Applications of the respondent No. 2. The fact that the High Court ventured into the terrain of dealing with merits of the case, does not require us to examine that question. For, once it is held that the Divisional Commissioner had no jurisdiction to entertain the appeal against the order of the Collector under Section 14B(1) rejecting the complaint filed by the respondent No. 2, no other issue needed examination by the High Court at his instance. Resultantly, we decline to go into the correctness of the decision of the Collector on merits in rejecting the Dispute Applications filed by respondent No. 2, for a declaration that the appellants had incurred disqualification. We also do not wish to dilate on the plea urged by the respondent No. 2 that the appellants had disentitled themselves for indulgence of this Court owing to their conduct, as we have held that the stated order(s) of the Divisional Commissioner are without jurisdiction and non-est in law.