Advocates:
['BAGUL D S', 'COPY SERVED ON GP', '', 'NO CAVEAT', 'DESALE NILESH N', 'KADETHANKAR AJIT B', 'SHARMA ALOK M']

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drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.4065 OF 2020

Sonal Dilip Shinde

PETITIONER

Age – 36 years, Occ – Business

R/o 233-K, Gitai Bungalow

Near Nutan Padvi High School,

Station Road, Dhule

Taluka and District - Dhule

VERSUS

1.

The State of Maharashtra

RESPONDENTS

Through its Principal Secretary,

Urban Development Department,

Mantralaya, Mumbai

2.

Divisional Commissioner,

Nashik Division, Nashik

3.

Dhule Municipal Corporation

Through its Commissioner,

Dhule, Taluka and District – Dhule

4.

The Learned Collector,

Dhule

5.

The State Election Commission

Maharashtra State,

6.

The Election Commission of India,

New Delhi,

.......

Mr. D. S. Bagul, Advocate for the petitioner

Mr. S. B. Pulkundwar, AGP for respondent - State

Mr. Ajit B. Kadethankar, Advocate for respondents No.2 and 5

Mr. A.C.Sisodiya h/f Mr. N.N.Desale, Adv. for respondent No.3

Mr. Alok M. Sharma, Advocate for respondent No.6

....…

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[CORAM : NITIN B. SURYAWANSHI, J.]

DATE : 29

^th SEPTEMBER, 2022

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard finally by the

consent of the parties.

2.

This petition, filed under Article 226 and 227 of the

Constitution of India, takes exception to the order dated 17^th

January, 2020 passed by respondent No.2, published in

Government Gazette dated 6^th

February, 2020, thereby

disqualifying the petitioner from the post of Councillor for a

period of three years, on the ground of non submission of

election expenses.

3.

The facts, in nutshell, are that, in the year 2018, elections

of respondent No.3 – Dhule Municipal Corporation were held. On

20^th November, 2018, the petitioner filed his nomination form

from Prabhag No.14-D. The petitioner, however, withdrew the

said nomination on 26^th November, 2018 and thus not contested

the said election. On 9^th December, 2018, election results were

declared. Thereafter, in the first general meeting of the

Corporation, the petitioner was nominated as Councillor.

4.

By the impugned order, published in the official Gazette on

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6^th February, 2020, the Divisional Commissioner, disqualified the

petitioner from the post of Councillor, on the ground that the

petitioner has failed to submit the details of election expenses,

within the stipulated time.

5.

After filing of this petition, this Court on 20^th March, 2020,

referred following two issues for decision of the Division Bench;

“(a) Would a nominated Councillor, as defined u/s 2 (11) incur a

disqualification u/s 10 (1E) for having entered the election fray and having

failed in submitting the accounts of election expenses and would such

disqualification unseat a nominated Councillor?

(b)

Is a nominated councillor exempted from any disqualification

under the Maharashtra Municipal Corporations Act and cannot be

unseated even if he incurs a disqualification for continuing as a

councillor?”

and directed that the post of the petitioner as nominated

Councillor be kept vacant till decision of the writ petition.

6.

Learned Division bench has answered the reference holding

that -

“20.

It would appear that in view of the said order, the candidates who

have withdrawn their nominations are not required to submit the account

of election expenses. The orders of the Election Commission issued in

exercise of powers conferred by Articles 243-K and 243-ZA of the

Constitution has the force of law. The nominated candidates are not

required to under go the process of election and they are only nominated.

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In view of that, they are note required to submit the election expenses. So

the question of disqualification U/Sec. 10(1E) and 49 of the Act 1949

would not arise. Had the nominated councillor required to under go the

process of election as was provided in the erstwhile 1995 Rules, then the

disqualifica