Maharashtra Village Panchayats Act, 1959: s.14B – Election of Gram Panchayat – Appellant elected as member of village Panchayat – Disqualification of appellant on account of nonsubmission of election expenses within the period prescribed – Held: A perusal of s.14B 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 – In the instant case, explanation of appellant that he was advised bed rest on account of hypertension and diabetes which caused unintended delay in furnishing election expenses was not accepted – Collector passed order disqualifying the appellant for a period of five years to be member of Gram Panchayat – Appeal dismissed for the reason that the medical certificate was not issued by the Competent Authority – High Court while disposing of writ petition held that copy of medical certificate tendered by the appellant had no particulars such as name, diagnosis, date and reference number and the said certificate was issued by the private hospital bearing only a stamp of doctor and the said document cannot be relied upon and if the authorities did not accept it, there was no error in the said view – There is no reason to take a different view than the view affirmed by the High Court.
Maharashtra Village Panchayats Act, 1959: s.14B – Plea of appellant was that there was delay of 15 days in submitting the election expenses and, therefore, disqualification for a period of five years was disproportionate to the default committed by her – Held: s.14B empowers the Election Commission to pass a just order of disqualification – The extent of period of disqualification has to be in proportion to the default – In the instant case, the order of disqualification for a period of five years was without taking into consideration the extent of default committed by the appellant – Such mechanical exercise of power without any adequate reasons, rendered the order of disqualification for a period of five years as illegal and untenable – Consequently, the order passed by the Collector and subsequent orders in appeal and in the writ petition are set aside in part to the extent of prescribing disqualification for a period of five years – Matter remitted to the Collector to take into consideration the period of delay/default, the purport for which the election expenses are sought to be furnished and that the order of disqualification operates from the date of the order including delay in passing the order of disqualification – Election laws.
Maharashtra Village Panchayats Act, 1959: s.14B – Whether provision of s.14B, mandatory or directory – Held: In s.14B, there is no prohibitive or negative expressions used as it empowers the Election Commission to pass a just order of disqualification – Subsection (1) of s.14B 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 – Since authority is vested with power to reduce the period of disqualification, therefore, makes the provision directory.
Maharashatra Zilla Parishads and Panchayat Samitis Act, 1961: s.15B – Elections of Panchayat Samiti – Disqualification of appellant for contesting elections for the period of five years on account of non-submission of election expenses within period prescribed – Meanwhile, elections of Gram Panchayat were notified and appellant submitted his nomination for the post of Sarpanch – Objection against it was rejected by the Returning Officer and appellant was duly elected to the post of Sarpanch – Returning Officer held that disqualification was applicable only for the elections of Zilla Parishads and Panchayat Samitis and not for elections of Gram Panchayat – Order of Returning Officer rejecting objection challenged before High Court – Writ petition also filed by appellant challenging disqualification order passed by Collector – High Court dismissed writ petition of the appellant while writ petition filed by objector was partly allowed by setting aside the order passed by Returning officer rejecting the objections raised by him – On appeal, held: Art.243-O of the Constitution of India provides that no election to any panchayats shall be called in question except by an election petition presented to such authority and in such manner as provided for by or under any law made under the legislature of the State – The dispute in these appeals did not pertain to election to either House of the Parliament but to a local body – The constitutional bar is contained in Art.243-O of the Constitution of India in furtherance of which s.15A was inserted in the year 1994 – s.10A of the 1959 Act and s.9A of the 1961 Act read with Arts.243-K and 243-O, are pari materia with Art.324 of the Constitution of India – 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 s.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 s.15 of the 1959 Act – High Court though exercises extraordinary jurisdiction under Art.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 Art.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 this, 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 did not warrant any interference – Constitution of India – Arts.243K, 243O and 324 – Election-Laws.
Interpretation of Statutes: Whether a provision is mandatory or directory – Prohibitive or negative words are ordinarily indicative of mandatory nature of the provision – Maharashtra Village Panchayats Act, 1959 – s.14B.
Disposing of the appeals, the Court
HELD: 1. 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. [Para 18][893-B-D] Union of India & Ors. v. A.K. Pandey (2009) 10 SCC
552 : [2009] 14 SCR 528; Chief Executive Officer, Krishna District Co-op. Central Bank Ltd. v.
K. Hanumantha Rao (2017) 2 SCC 528 – relied on
D. Venkata Reddy v. R. Sultan & Ors. (1976) 2 SCC 455; State of Punjab v. Baldev Singh (1999) 6 SCC
172 : [1999] 3 SCR 977; Tarlochan Dev Sharma v. State of Punjab & Ors. (2001) 6 SCC 260 : [2001] 3 SCR 1146; Ravi Yashwant Bhoir v. District Collector, Raigad & Ors. (2012) 4 SCC 407 : [2012] 3 SCR 775 – Distinguished.
2. 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. 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. 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 such period of disqualification must be supported by tangible reasons lest it would border on being disproportionate. [Para 20][895-C-F]
3. The Collector shall pass the order afresh in respect of period of disqualification in accordance with law preferably within a period of one month from the date of receipt of a copy of this judgment. The period of disqualification, if any, will be operative from the date of the order passed earlier by the Collector on 9th August, 2018 and any elections held as a consequence of the order of disqualification will abide the final order to be passed by the Collector. [Para 21] [895-H; 896-A-B]
4. The 73rd Constitutional Amendment inserted Part IX in the Constitution of India. Article 243-O of the Constitution of India as inserted provides that no election to any panchayats shall be called in question except by an election petition presented to such authority and in such manner as provided for by or under any law made under the legislature of the State. In terms of such constitutional provisions, Section 15A was inserted by Maharashtra Act No. 21 of 1994. The dispute in the present appeals does not pertain to election to either House of the Parliament but to a local body. The constitutional bar is contained in Article 243-O of the Constitution of India in furtherance of which Section 15A was inserted in the year 1994. [Paras 38, 39][901-E-F; 902-A-C]
Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal & Ors. (2011) 1 SCC 236 : [2010]
13 SCR 820 – held inapplicable.
Gokul Chandanmal Sangvi v. State of Maharashtra and Others 2018 (4) Mh LJ 911; P. Punnuswami v. The Returning Officer AIR 1952 SC 64 : [1952] SCR 218; Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 : [1978] 2 SCR 272; S. T. Muthusami v. K. Natarajan & Ors. (1988) 1 SCC 572 : [1988] 2 SCR 759; Malam Singh v. The Collector, Sehore AIR 1971 MP 195; Harnek Singh v. Charanjit Singh & Ors. (2005) 8 SCC
383 : [2005] 4 Suppl. SCR 223 – referred to.
5. 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 of the Constitution of India. 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. [Para 43][905-A-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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