SHOBHABAI NARAYAN SHINDE versus THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS.
[2022] 3 S.C.R. 1035, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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1035
SHOBHABAI NARAYAN SHINDE
v.
THE DIVISIONAL COMMISSIONER, NASHIK DIVISION,
NASHIK & ORS.
(Civil Appeal No. 55 of 2022)
JANUARY 04, 2022
[A. M. KHANWILKAR AND C. T. RAVIKUMAR, JJ.]
Maharashtra Village Panchayats Act, 1959 – ss.14B(1) and
14B(2) – Whether an appeal could be filed before the Divisional
Commissioner against an order passed by the Collector u/s.14B(1),
declining to disqualify a Sarpanch/Member of the Panchayat for
allegedly having failed to lodge an account of election expenses
within time and in the manner prescribed by State Election
Commission, without offering any good reason or justification for
such failure – Held: No remedy of appeal is envisaged against an
order of the State Election Commission or its delegatee - the Collector,
u/s.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.
Appeal – An appeal cannot lie before the same Authority/
functionary who had passed the order of rejection of prayer.
Allowing
the appeals, the Court
HELD:1. The power under Section 14B(2) of the
Maharashtra Village Panchayats Act, 1959 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
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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). [Para 14][1041-F-H; 1042-A]
2. A priori, if the State Election Commission or its delegatee
were to reject or drop the proceedings against the concerned
person or member initiated under Section 14B(1), as being devoid
of merits or for any other reason, the complainant does not have
remedy of appeal against such decision. Such an order becomes
final and is not appealable at all. Indeed, it can be assailed before
the constitutional court under Article 226 of the Constitution.
[Para 18][1043-F-G]
3. 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.
[Para 21][1044-E-F]
Suchita Murlidhar Kewati (Sarpanch) & Ors. vs. State
of Maharashtra & Ors. 2013 (6) Mh.L.J. 414 and Shri
Gulabrao vs. State of Maharashtra & Ors. (Decision
of High Court of Judicature at Bombay Bench at
Aurangabad in Writ Petition No. 12276/2021 decided
on 3.12.2021) – referred to.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 55 of
2022.
From the Judgment and Order dated 17.12.2020 of the High Court
of Judicature at Bombay Bench at Aurangabad in Writ Petition No.
9244 of 2019.
With
Civil Appeal No. 56 of 2022.
Sudhanshu S. Choudhari, Adv. for the Appellant.
Nishant Ramakantrao Katneshwarkar, Shirish K. Deshpande,
Sachin Patil, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. The core issue in these appeals is: whether an appeal could be
filed before the Divisional Commissioner against an order passed by the
Collector under Section 14B(1) of the Maharashtra Village Panchayats
Act, 19591, declining to disqualify a Sarpanch/Member of the Panchayat
for allegedly having failed to lodge an account of election expenses within
the time and in the manner prescribed by the State Election Commission,
without offering any good reason or justification for such failure?
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
1 for short, “the 1959 Act”
SHOBHABAI NARAYAN SHINDE v. THE DIVISIONAL COMMISSIONER,
NASHIK DIVISION, NASHIK & ORS.
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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, Nasik2, 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 Aurangabad3 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
2 for short, “the Divisional Commissioner”
3 for short, “the High Court”
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Suchita Murlidhar Kewati (Sarpanch) & Ors. vs. State of
Maharashtra & Ors.4 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.
9. We have heard Mr. Sudhanshu S. Choudhari, learned counsel
for the appellants and Mr. Nishant R. Katneshwarkar, learned counsel
for the respondent No. 2. They have, more or less, reiterated the stand
taken before the High Court by the respective parties.
10. The provision, for disqualifying, to be a member of a Panchayat
and to continue as such, is imbued in Section 145 of the 1959 Act. One of
the stipulations inserted by way of amendment in 2010 with effect from
6.5.2010 is clause (j-4) in Section 14(1). It predicates that a person, if
disqualified by the State Election Commission under Section 14B of the
Act, shall not be a member of a Panchayat or continue as such. Section
14B6 was also inserted by the same amendment Act in 2010. It enables
the State Election Commission to declare a person (member of the
Panchayat) as disqualified for being a member of the Panchayat or for
contesting an election for being a member for a period of five years
from the date of the order so passed, if he has failed to lodge an account
of election expenses within the
time and in the manner required by the
4 2013 (6) Mh.L.J. 414
5 Disqualifications. – (1) No person shall be a member of a Panchayat
continue as such, who –
(a)
to (j-3) xxx xxx
xxx
(j-4) has been disqualified by the State Election Commission under section 14B; or
…..
6 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 such disqualification.
SHOBHABAI NARAYAN SHINDE v. THE DIVISIONAL COMMISSIONER,
NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.]
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State Election Commission and has no good reason or justification for
such failure. Sub-Section (2) of Section 14B enables the State Election
Commission to remove such disqualification or reduce the period thereof.
11. Be it noted that the State Election Commission in exercise of
its enabling powers, vide Article 243-K of the Constitution of India
including Section 10A(2)7 of the 1959 Act, issued an order dated
19.11.20108 to delegate its powers, such as under Section 14B of the
1959 Act to the officers of the State Government. Clause B of the stated
order stipulates that powers conferred upon the State Election Commission
under Section 14B(1) shall vest in the concerned Collector of the District
and powers conferred on it under Section 14B(2) shall vest with the
concerned Divisional Commissioner.
12. By virtue of this order, the State Election Commission has had
authorised the Collector to exercise its powers under Section 14B(1);
7 10A.
State Election Commission.-
…..
(2) The State Election Commissioner may, by order, delegate any of his
powers and functions to any officer of the Commission or any officer of the
State Government not below the rank of Tahsildar.
8
…
STATE ELECTION COMMISSION, MAHARASHTRA
New Administrative Building, Opp. Ministry, Madam Cama Road, Mumbai – 400 032
Date: 19.11.2010
O R D E R
Regarding conferring of powers to declare disqualification of the candidates
contesting the elections of Zilla
Parishad, Panchayat Samiti and Village Panchayats if
they do not submit the expenditure account in the prescribed manner.
No. SEC/ZPPS/2010/L.No.9/KA-7: Under the powers conferred vide Article No.
243-K of the Indian Constitution, as well Section 9A(2) of the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 1961 and Section 10A(2) of the Bombay Village
Panchayat Act, 1958 and in exercise of other powers, the State Election Commissioner,
Maharashtra pass the following order: -
(A)
The powers conferred under the provisions of Section 15(B)(1) and 62(A) of the
Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 are hereby vested
in concerned Collector. Similarly the powers conferred under Section 15(B)(2)
and 62(B)(1) are hereby vested in concerned Divisional Commissioners.
(B)
The powers conferred under the provisions of Section 14(B)(1) of the Bombay
Village Panchayats Act, 1958 are hereby vested in concerned Collector.
Similarly the powers conferred under Section 14(B)(2) are hereby vested
in concerned Divisional Commissioners.
By the order of Election Commissioner
…
(emphasis supplied)
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whereas powers under Section 14B(2) by the Divisional Commissioner.
It follows that the concerned State Government officials are ordained to
exercise the assigned power in silos. Ergo, the power of State Election
Commission under Section 14B(1) to declare that the Sarpanch/Member
of a Panchayat as disqualified, is to be exercised by the Collector and
not the Divisional Commissioner. Similarly, the Divisional Commissioner
can exercise power only in respect of matters specified in Section 14B(2)
- to remove the disqualification incurred under sub-Section (1) or reduce
the period of such disqualification. In either case, the power to decide
concerned issues is that of the State Election Commission, which
thenceforth could be exercised by its concerned delegatee in respect of
matters specified in the stated order.
13. Notably, no appeal is provided against the order of Collector
(or of State Election Commission) refusing to disqualify the Sarpanch/
Member under Section 14B(1). Similarly, no appeal is provided even
against the order of the Divisional Commissioner (or of State Election
Commission) under Section 14B(2). A limited window against the order
under Section 14B(1) passed by the Collector (or State Election
Commission itself) declaring the Sarpanch/Member of a Panchayat as
disqualified, is kept open before the Divisional Commissioner (or the
State Election Commissioner, if the order under Section 14B(1) is or
were to be passed by the State Election
Commission itself) - to remove
such disqualification or to reduce the period thereof in deserving cases.
To put it tersely, for the nature of power exercised by the State Election
Commission under Section 14B, no remedy of appeal is envisioned by
the statute.
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
SHOBHABAI NARAYAN SHINDE v. THE DIVISIONAL COMMISSIONER,
NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.]
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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)9 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
9 16. Disability from continuing as member. – (1) If any member of a Panchayat
(a) who is elected or appointed as such, was subject to any of the disqualification
mentioned in Section 14 at the time of his election or appointment, or
(b) during the term for which he has been elected or appointed incurs any of the
disqualifications mentioned in Section 14, he shall be disabled from continuing to be
a member, and his office shall become vacant.
(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 sub-section by the Collector
against any member without giving him a reasonable opportunity of being heard.
(emphasis supplied)
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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.
17. Concededly, Section 16 is a provision which speaks about the
disability from continuing as the member of a Panchayat, consequent to
incurring disqualification or has been so declared under Section 14 of
the Act. Once a Sarpanch/Member is disqualified under Section 14B by
virtue of an order under Section 14B(1), it would give rise to two situations
– the first is that the person concerned can invoke option under Section
14B(2) for removal of his disqualification or for reduction of the period
of such disqualification. The second is the obligation fastened upon the
Collector to decide the issue as to whether vacancy has occurred on
account of such disqualification. That question is required to be answered
by the Collector in the first instance, in terms of Section 16(2) and to
take follow-up steps thereafter in filling up such vacancy. The decision
of the Collector on such question, referable to sub-Section (2) of Section
16, however, has explicitly been made appealable before the State
Government or the delegate of the State Government. That is, completely,
a different regime albeit a consequence of process referred to in Section
14B(1) - to declare a Sarpanch or a member as having incurred
disqualification. This question decided by the Collector, is
essentially in
his capacity as a delegatee of the State Election Commission and, de
jure, deemed to have been decided by the State Election Commission
itself. Be that as it may, the question decided by the Collector under
Section 16 is, in one sense, a ministerial act bestowed upon him to
ascertain whether vacancy had arisen as a consequence of the
disqualification order and to fill up such vacancy.
18. A priori, if the State Election Commission or its delegatee
were to reject or drop the proceedings against the concerned person or
member initiated under Section 14B(1), as being devoid of merits or for
any other reason, the complainant does not have remedy of appeal against
such decision. Such an order becomes final and is not appealable at all.
Indeed, it can be assailed before the constitutional court under Article
226 of the Constitution of India.
19. The High Court has adverted to the decision in Suchita
Murlidhar Kewati10. Indeed, the exposition in that decision is in the
10 supra at Footnote No. 4
SHOBHABAI NARAYAN SHINDE v. THE DIVISIONAL COMMISSIONER,
NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.]
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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 3.12.202111. 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
11 Shri Gulabrao vs. State of Maharashtra & Ors. - Writ Petition No. 12276/2021
decided on 3.12.2021
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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.
23. Accordingly, these appeals succeed. The impugned common
judgment and order is set aside. As a result, the separate orders passed
by the Divisional Commissioner dated 15.7.2019 in the respective appeals
are also set aside and instead the writ petitions filed by the appellants
are allowed, thereby restoring the separate orders passed by the Collector
dated 5.2.2019, rejecting the stated Dispute Application(s) filed by the
respondent No. 2. There shall be no order as to costs.
Bibhuti Bhushan Bose
Appeals allowed.
(Assisted by : Preetam Bharti, LCRA)
SHOBHABAI NARAYAN SHINDE v. THE DIVISIONAL COMMISSIONER,
NASHIK DIVISION, NASHIK &
ORS. [A. M. KHANWILKAR, J.]