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2013 Supreme(Bom) 463
BOMBAY HIGH COURT
S.V. GANGAPURWALA, J.
Rukhmaji Dnyanoba Hakke
Vs
The Collector, Latur and others
Decided on: 28-2-2013
The provisions of THE BOMBAY VILLAGE PANCHAYAT ACT 13A are self-operative and do not require notice or adjudication before declaring seats vacant.
Headnote:
Natural Justice - Election Dispute - THE BOMBAY VILLAGE PANCHAYAT ACT 13A, Rule 41A - Summary: The court discussed the provisions of THE BOMBAY VILLAGE PANCHAYAT ACT 13A and Rule 41A, emphasizing that the statute does not require issuance of notice before declaring seats vacant. The court held that the provisions of the Act are self-operative and do not contemplate adjudication or notice. The order declaring the seats vacant was deemed ministerial, as the seats became vacant by operation of law.
Fact of the Case:
The petitioner contested election from two wards of Gram Panchayat and was declared elected from both. The Collector declared both seats vacant as the petitioner failed to resign from one seat within 7 days.
Finding of the Court:
The court held that the provisions of the Act are self-operative and do not require notice or adjudication before declaring seats vacant.
Issues: The main issue was whether the Collector's order declaring both seats vacant without issuing notice and hearing the petitioner was valid.
Ratio Decidendi: The court emphasized that the provisions of the Act are self-operative and do not require notice or adjudication before declaring seats vacant.
Final Decision: The writ petition was dismissed, and no costs were awarded.
S. V. GANGAPURWALA, J.
1. The petitioner contested election from Ward No. 2 and Ward No. 3 of Gram Panchayat Mashnerwadi. The petitioner was declared elected as a member of Gram Panchayat from both wards i. e. Ward No. 2 and Ward No. 3 on 21.10.2012. The results of the said election were published in the official Gazette. The petitioner failed to tender his resignation from one seat within 7 days. Vide order dated 02nd November, 2012 the Collector declared both the seats vacant.
2. Shri Nimbalkar, the learned counsel for the petitioner eruditely contends that no opportunity of hearing was given to the petitioner before such an order was passed by the Collector. The learned counsel submits that when the consequences to the extent of unseating the elected candidate results, it was imperative for the authorities to issue notice and hear the petitioner before passing the impugned order. The petitioner’s seat would not become vacant only on the ground that the resignation of one seat has not been submitted within seven days. According to the learned counsel, though the provisions of the statue and rules do not contemplate issuance of notice and hearing the petitioner, still taking into account the consequences that are contemplated the observance of principles of natural justice are to be impliedly read. The learned counsel submits that in other statute where similar provisions are made, the notice is contemplated. The learned counsel relies on the provisions of Sec. 73(ff) and 78 of the Maharashtra Cooperative Societies Act, so also judgment of the Full Bench of this Court in a case of Narayan Gujabrao Boyar Vs. Yeotmal Zilla Parishad Karmachari Sahkari Path Sanstha Maryadit Yeotmal reported in 2009(6) Mh. L. J. 500 . The learned counsel further submits that, in similar circumstances the provision of notice is contemplated under the Bombay Provincial Municipal Corporation Act and more particularly under Sub Rule 2(m) of Rule 9 of the said rules.
3. Shri Bharaswadkar, the learned counsel for the respondent supports the order and submits that the provisions of the statute do not require any issuance of notice before passing the order.
4. Before I proceed to deal with the contentions canvassed by the learned counsel, it would be appropriate to refer to the relevant provisions. THE BOMBAY VILLAGE PANCHAYAT ACT 13A. Vacation of seats. If a person is elected to more than one seat in a Village Panchayat, then, unless within the prescribed time he resigns all but one of the seats by notice in writing signed by him and addressed to the State Election Commission or any officer authorised by it in this behalf, all the seats shall become vacant.
5. Rule 41A of the said Rules reads as under : BOMBAY VILLAGE PANCHAYAT ELECTION RULES, 1959 41A Multiple election .If a person is elected to more than one seat in a village panchayat, the time within which he may resign all but one of the seats under Section 13A shall be seven days from the date of the posting of the result of the election by the Returning Officer under Rule 36.
6. It is not disputed that the petitioner was elected from Ward No. 2 and Ward No. 3. The provisions of section 13A of the said Act mandates that if a person is elected to more than one seat in the Village Panchayat, then unless he resigns from all but one of the seats, within the prescribed time by notice in writing and addressed to the State Election Commission or any Officer Authorized by it in this behalf all the seats shall become 'vacant'. Rule 41A of the said Rules lays down the period within which the person has to elect the seat which he would like to retain. As per the said rules within seven days from the date of the posting of the result of the election by the Returning Officer under Rule 46, the person has to elect which seat he would retain and has to resign from the other seat.
7. In the present case, it is not disputed that the petitioner was posted with the result of election on 22 nd October, 2012.
