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2018 Supreme(Bom) 892
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Kaveri w/o Hanumant Borge - Petitioner
Versus
The State of Maharashtra Through its Principal Secretary, Rural Development Department & Ors. - Respondents
Writ Petition No. 13912 of 2017
Decided On : 06-07-2018
Advocate Appeared:
For the Petitioner: Shri S.S. Thombre
For the Respondent: Shri S.R. Yadav, Shri S.T. Shelke
Headnote:
Maharashtra Village Panchayats Act - Section 13A - Maharashtra Gram Panchayat Election Rules, 1959 - Rule 41A - Elections to position - Transaction - By this petition Petitioner prays that impugned order passed by District Collector Bed be quashed and set aside - Petitioner has been removed as member as well as of Village Section Maharashtra Village Act for having failed to resign as per Rule of Maharashtra Election Rules – Held, Considering peculiar facts of this case court view that unless mischief is established as against Petitioner conduct of Petitioner needs to be scrutinized within ambit of provisions applicable - When Petitioner has discharged her obligation by sending her resignation as member Gram within two days from official declaration of result provisions need to be interpreted in manner as avoid unseating of democratically elected candidate - As neither section nor rule mentions resignation should be delivered to authorized officer within seven days it needs to be interpreted that legislature intended that elected candidate should perform his obligation of resigning within seven days - On account postal delay Petitioner cannot be blamed so as to dislodge her from elected position - No provision Act or Rules or any judicial pronouncement has been cited by which contention State could be substantiated that such an elected candidate has to ensure that resignation should be delivered to authorized officer within seven days by hand delivery or any other mode – Petition allowed
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. By this petition, the Petitioner prays that the impugned order dated 21.11.2017 passed by the District Collector, Beed be quashed and set aside. The Petitioner has been removed as a member of the Gram Panchayat as well as Sarpanch of Village Gram Panchayat, Babhalkhunta under Section 13A of the Maharashtra Village Panchayats Act, for having failed to resign as per Rule 41A of the Maharashtra Gram Panchayat Election Rules, 1959.
3. The Petitioner was elected as a member of the Babhalkhunta Gram Panchayat on 09.10.2017 after the polling took place on 07.10.2017. She also contested the elections to the position of a Sarpanch since the said position was to be directly filled in by elections held on 07.10.2017 under Section 30(1A) of the Maharashtra Village Panchayats Act. She was elected as a Sarpanch on 09.10.2017.
4. Under Rule 41A of the Maharashtra Gram Panchayat Election Rules, 1959, a period of seven days is prescribed, from the date of the official publication of the notice declaring the results of the elections, for a candidate to resign from one post if he has been elected to more than one post in the said elections. A notification was published by the District Collector on 11.10.2017 notifying the results of the elections. By excluding the said date, the Petitioner was expected to resign from all but one position within seven days, which would be on or before 18.10.2017.
5. It is the case of the Petitioner that she has written down her resignation from the position of member of the Gram Panchayat on 13.10.2017, signed it and posted it by RPAD to the District Collector, Beed, on the same day, from her village. The contention is that after the resignation was dispatched by RPAD, it was beyond the control of the Petitioner as to when the said resignation would reach the District Collector. The case of the Respondent/ State is that as the District Collector received the resignation letter on 01.11.2017, the Petitioner was held to have incurred a removal as a member and as the Sarpanch, vide the impugned order dated 21.11.2017. It is contended that there was no hearing given to the Petitioner before unseating her and declaring both the positions vacant.
6. The learned counsel for the Petitioner relies upon Section 13A and Rule 41A to contend that the said section provides that a person, who is elected to more than one seat in the village panchayat, shall resign from all the seats but one, by writing a resignation duly signed by the candidate and addressed to the State Election Commission or any officer authorized by it in this behalf. If this is not so done, all the seats occupied by the said candidate would be declared as vacant. He, therefore, contends that the language of the said provision requires a candidate to write the resignation letter, sign it and address it to the State Election Commission or any authorized officer. The language in the said section and the Rule does not indicate that a resignation letter should be delivered within seven days to the competent authority.
7. Reliance is placed upon Rule 41A of the Election Rules to support the contention that even the said rule which prescribes the time period of seven days, does not specifically indicate that the resignation letter should be delivered within seven days to the District Collector. It is, therefore, contended that a person, who is democratically elected by the mandate of the masses, cannot be unseated merely because the District Collector desires to interpret a particular provision in a different manner. When the resignation letter is not mandated to be delivered within seven days to the District Collector, the State cannot take a stand that as the letter dispatched by RPAD has not reached the District Collector within time, all the seats would fall vacant.
8. Shri Shelke, learned Advocate appearing on behalf of the State Election Commission, which has author
