caselaws
Supreme Court of India
Shobhabai Narayan Shinde vs The Divisional Commissioner on 4 January, 2022Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, C.T. Ravikumar
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 55 OF 2022
(arising out of S.L.P. (CIVIL) NO. 295 OF 2021)
SHOBHABAI NARAYAN SHINDE ..…APPELLANT
VERSUS
THE DIVISIONAL COMMISSIONER,
NASHIK DIVISION, NASHIK & ORS. …..RESPONDENT(S)
with
CIVIL APPEAL NO. 56 OF 2022
(arising out of S.L.P. (CIVIL) NO. 451 OF 2021)
JUDGMENT
A.M. Khanwilkar, J.
Signature Not Verified
Digitally signed by
DEEPAK SINGH
1. Leave granted.
Date: 2022.01.04
16:35:37 IST
Reason:
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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
1 for short, “the 1959 Act”
3
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 2,
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 3 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
2 for short, “the Divisional Commissioner”
3 for short, “the High Court”
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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
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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. 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 14 5 of 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 (j3) xxx xxx xxx
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1959 Act. One of the stipulations inserted by way of amendment
in 2010 with effect from 6.5.2010 is clause (j4) 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 14B 6 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
(j4) 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 subsection (1) or reduce the period of such
disqualification.
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required by the State Election Commission and has no good reason
or justification for such failure. SubSection (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 243K 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
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
ORDER
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/KA7: Under the powers conferred vide Article
No. 243K 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:
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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); 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,
(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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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 subSection
(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
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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
subSection (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
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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
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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 to entertain an appeal under “Section 16(2)”
against an order of Collector under Section 14B(1) refusing to
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 subsection by the
Collector against any member without giving him a reasonable opportunity of
being heard.
(emphasis supplied)
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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 followup steps thereafter in filling up
such vacancy. The decision of the Collector on such question,
referable to subSection (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
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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 context of an application filed under Section 14B for a
10 supra at Footnote No. 4
15
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 followup 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.
11 Shri Gulabrao vs. State of Maharashtra & Ors. Writ Petition No.
12276/2021 decided on 3.12.2021
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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
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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 nonest 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
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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.
..……………………………J.
(A.M. Khanwilkar)
………………………………J.
(C.T. Ravikumar)
New Delhi;
January 04, 2022.
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