SHRIKRISHNA WASUDEO DHAGE vs SHIVCHARAN s/o TRIMBAKRAO KALNE

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Bom) 233

IN THE HIGH COURT OF BOMBAY
B. P. Dharmadhikari, J.
SHRIKRISHNA WASUDEO DHAGE - Petitioner.
vs.
SHIVCHARAN s/o TRIMBAKRAO KALNE and others - Respondents.
W.P. No. 5034 and 5658 of 2009
Decided on: 15-2-2010.

Advocates Appeared:
In W. P. No. 5034 of 2009 :
For petitioner: A. M Ghare
For respondent No.2: S. D. Chopde
For respondent No.3: R. M Mardikar
For respondent No.5: V. A. Thakre, Assistant Government Pleader
In W. P. No. 5658 of 2009 :
For petitioner: M V. Samarth
For respondent Nos. 3 and 4: A. M Ghare
For respondent Nos. 1 and 2: Mrs. T. D. Khade, Assistant Govt. Pleader

Headnote:Maharashtra Zila Parishad and Panchayat Samitis Act, 1961 - Section 14(j-3) and 15 - Disqualification - Encroachment by mother-in-law - Noted in 2003 - Name recorded of petitioner in 2007-2008 - Regularization sought - Application filed - Contention, encroachment could be challenged in election petition under Section 15 and proceedings under Section 14 cannot be seen as misconceived. - Provisions of Section 14(1)(j-3) ae added to Statute book to deal with only such situation. The act of petitioner in trying to get her encroachment regularized clearly shows abuse of her position and is contrary to that clause. She is therefore correctly found to have incurred disqualification by both the authorities. The name of petitioner has been recoded as encroacher and she has tried to get it regularized. Both these events ae after her election. The contention that this encroachment therefore could have been used to challenge her election by filing election petition under Section 15 of the 1958 Act, and hence proceedings under Section 14 therefor is not tenable, is therefore misconceived in present facts.
Sections 16(1) and 27 - Disqualification - Disqualification existing on date of election whether can be disputed in election petition under Section 27 - Disqualification of having children more than two - Remedy before Additional Commissioner not available - Therefore application not maintainable. - The disqualification of petitioner on the ground of having more than two children therefore, ought to have been asserted in the election petition under Section 27 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 and recourse to remedy of disqualification before respondent is not available. The application filed by the present respondent No. 1 Shivchaan before respondent No. 5 under Section 58(1)(e) read with Sections 62 and 16 and 16(1)(n) of that Act is therefore not maintainable. The impugned order passed by the Additional Commissioner, Amravati is therefore without jurisdiction. Same is therefore liable to be quashed and set aside and is accordingly quashed and set aside. Writ petition is thus allowed, by making rule absolute accordingly with no order as to cost.

JUDGMENT :- By these petitions filed under Articles 226 and 227 of the Constitution of India challenge is to order of disqualification passed against the respective petitioners. Petitioner Shrikrishna in Writ Petition No. 5034/2009 has been held disqualified by respondent No.5 Additional Commissioner therein, in Appeal proceeding under section 58(1 E) read with section 16(1) of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961. The disqualification is on account of having more than two children after the stipulated date. The Appellate Authority has found that the 4th child of petitioner is born on 23-11-2002 i.e. after the cut off date 12-9-2001 and hence petitioner has incurred disqualification under section 16(1)(n) of the 1961 Act. The finding of facts are not in dispute before me.

2. Petitioner - Vandana in Writ Petition No.5658/2009 is found disqualified to continue as Sarpanch and Member of Gram Panchayat (respondent No.3) under the provisions of section 14(j3) of the Bombay Villa Panchayat Act, 1958 as she has encroached on 1300 sq. meters of government land. This order of disqualification passed by respondent No. 2 Addition Collector has been upheld in Appeal under section 16(2) of the 1958 Act b respondent No. 1 Additional Commissioner. Here though the fact encroachment by petitioner is not disputed, contention is, encroachment w made long back by her mother-in-law and petitioner married into that fan subsequently.

3. Basic contention in both these petitions is that as the ground used II disqualification was in existence at the time of election of respective petitioner, election petition was the only remedy available and the proceedings disqualification moved after expiry of period of limitation are not sustainable. Reliance has been placed on the judgment of Hon'ble Apex Court reported at IR 2007 SC 903. State of Himachal Pradesh and others vs. Surinder Singh Banolta for the said purpose.

4. I have heard Shri A. M. Ghare, learned counsel for petitioner, Shri S.D. hop de, learned Counsel for Respondent No.2, Shri R. M. Mardikar, learned Counsel for Respondent No. 3 and Shri V. A. Thakre, learned Asstt. Govt. Pleader for Respondent No.5 in Writ Petition No. 5034/2009. Respondent No.1 ho filed complaint and sought disqualification of petitioner has chosen not to appear though notice for final disposal has been served upon him.

In Writ Petition No.5658/2009 I have heard Shri M. V. Samarth, learned Counsel for Petitioner, Shri A.M. Ghare, learned Counsel for Respondent Nos. 3 Gram Panchayat and 4 - Complainant, and Mrs. T. D. Khade, learned Asstt. Govt. Pleader for Respondent Nos. 1 and 2. The complaint for disqualification was filed by respondent No.4 and one Kedar together. That Kedar was joined as respondent No. 5 earlier, but later-on the petitioner sought his deletion and the same has been allowed on 25-1-2010. As the facts are in dispute in Writ Petition No. 5658/2009, I find it proper to deal with that Writ Petition first.

5. Petitioner Vandana accepts that there is encroachment on government and, however, she has pointed out that, that encroachment has been noted on 12-11-2003 and it has been done by her mother-in-law Rukhma. She states that the encroachment was done in the year 1991 by Rukhmabai who later-on applied for its regularization. She got married with Surendra who is son of Rukhmabai, in the year 1999 i.e. before she was elected as Sarpanch of Gram Panchayat. In this situation, contention is as encroachment is not done by the petitioner, she cannot e disqualified on that account. The other contention is that she has been elected as Member of Gram Panchayat in 2007 and Sarpanch thereafter. Hence, croachment and disqualification available at that time cannot be used by filing proceedings under section 14 of the 1958 Act to disqualify her, when that challenge was open in election petition under section 15 of the Act. Support is also sought to be taken from the stand in application for disqualificat

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2010 Supreme(Bom) 233

IN THE HIGH COURT OF BOMBAYB. P. Dharmadhikari, J.SHRIKRISHNA WASUDEO DHAGE - Petitioner.vs.SHIVCHARAN s/o TRIMBAKRAO KALNE and others - Respondents.W.P. No. 5034 and 5658 of 2009Decided on: 15-2-2010.

Cases Referred (2)

IN THE HIGH COURT OF BOMBAY
B. P. Dharmadhikari, J.
SHRIKRISHNA WASUDEO DHAGE - Petitioner.
vs.
SHIVCHARAN s/o TRIMBAKRAO KALNE and others - Respondents.
W.P. No. 5034 and 5658 of 2009
Decided on: 15-2-2010.