Full Judgment Text
2020:BHC-AS:5072
917 - WP. 10308-19
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 10308 OF 2019
Kalpana Gangaram Chaudhari … Petitioner
Vs.
Tahsildar,
Taluka Haveli, District Pune & Ors. … Respondents
*
Mr. Chaitanya Nikhte, for the Petitioner.
Mr. A. P. Vanarse, AGP for Respondent Nos. 1, 3 and 12.
Mr. G. S. Godbole a/w Aditya P. Shirke, for Respondent Nos. 5 to 10.
*
CORAM : C. V. BHADANG, J.
DATE : FEBRUARY 25, 2020
ORAL JUDGMENT :
1. Rule made returnable forthwith. Learned AGP waives
notice for Respondent Nos. 1, 3 and 12; the learned counsel Mr.
Godbole waives notice for Respondent Nos. 5 to 10. By consent of
parties, petition is taken up for final disposal.
2. The challenge in this petition is to the judgment and order
th
dated 13 September, 2019 passed by the Collector, Pune in Dispute
Application No. 62 of 2019. By the impugned order, the learned
th
Collector has confirmed the no confidence motion dated 16 July,
2019 carried against the Petitioner, and the consequent declaration
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917 - WP. 10308-19
th
dated 16 July, 2019 granted by the Tahsildar.
th
3. The brief facts are that on 9 April, 2018, the Petitioner
was elected as a Upsarpanch of village Gram Panchayat Naigaon,
Tahsil Haveli, district Pune. The Gram panchayat consists of nine
members and the Petitioner secured 5 votes in a secret ballot in the
th
polling, held on 9 April, 2018 for election of Upsarpanch.
Subsequently, the Respondent Nos. 4 to 11 moved a motion of no
confidence against the Petitioner, which was considered in a meeting
th
dated 16 July, 2019. The said motion was passed by a majority of 6
votes against 3 and consequently, the Petitioner ceased to be the
Upsarpanch of the said village. The Petitioner unsuccessfully
challenged the same before the Collector. Hence, this petition.
4. I have heard the learned counsel for the parties. Perused
record.
5. It is submitted by the learned counsel for the Petitioner
that one of the members Sau. Sunita Gaikwad (Respondent No. 8) was
disqualified from being a member of the panchayat, as she had failed
to produce a caste validity certificate within time, as prescribed. She
was belonging to a Scheduled Tribe category, and the learned counsel
points out that in fact the Caste Scrutiny Committee had rejected her
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claim. It is submitted that once the caste validity certificate is not
produced within time, the disqualification is automatic. The learned
counsel points out that in the voting by show of hands, admittedly,
Respondent No. 8 had voted in favour of the no confidence motion.
6. It is submitted that if the vote of Respondent No. 8 is
excluded, then the no confidence motion, which was carried by 5 votes
against 8 votes (inasmuch as Respondent No. 8 was disqualified from
being a member and from participating in the voting), cannot be said to
rd
have been carried by 2/3 majority, as required by law. For this
purpose, reliance is placed on the decision of the Supreme Court in the
1
case of Ganesh Gurkule Vs. Tahsildar, Sinnar & Ors. . He therefore,
submits that the no confidence motion has not been legally carried and
the learned Collector was in error in refusing to set it aside.
7. Mr. Godbole, the learned counsel for Respondent Nos. 5
to 10 in all fairness did not dispute that Respondent No. 8 had voted in
favour of the no confidence motion. However, it is submitted that
Respondent No. 8 had voted in favour of the Petitioner when she was
elected as Upsarpanch on 9.4.2018. The learned counsel points out
that the Petitioner was elected as Upsarpanch by a margin of one vote,
1 (2019) 3 SCC 211
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as she had secured 5 votes as against 4 votes, secured by her rival. It is
submitted that if the vote of Respondent No. 8 is excluded as she was
disqualified, the very election of the Petitioner as Upsarpanch becomes
illegal. The learned counsel submitted that this Court would not issue
a writ or set aside an order (even assuming it to be illegal), if it has the
effect of reviving or affirming, an otherwise invalid order or a
situation. In short, it is submitted that even assuming that the no
rd
confidence motion was not carried with the required 2/3 majority, still
this Court should refrain from interfering with the impugned order, as
it will have the effect of restoring the Petitioner as Upsarpanch, when
her election as a Upsarpanch is illegal, as both Petitioner and her rival
would have secured 4 votes (after exclusion of vote of Respondent
No. 8). It is submitted that Respondent No. 8 has filed an affidavit
stating that she had voted in favour of the Petitioner in her election as
Upsarpanch, to which there is no counter.
8. I have carefully considered the rival contentions of the
parties. It is not in dispute that the impugned no confidence motion
against the Petitioner was carried by 6 votes out of total 9 members
present and voting. It is also undisputed that the said motion was
carried by open voting i.e. by show of hands, in which Respondent No.
8 had voted in favour of the no confidence motion. It is also not in
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dispute and in fact it is a matter of record that Respondent No. 8 had
failed to produce her cast validity certificate within time after her
election, her caste claim has been rejected by the Caste Scrutiny
Committee. It is now well settled that requirement to submit such
caste validity certificate, within prescribed period is mandatory, and
failure to do so results in disqualification, which is automatic. The
reasoning articulated by the learned Collector that there is no
declaration of such disqualification, and therefore, it cannot be acted
upon, to my mind, cannot be accepted. Thus, for all practical
purposes, Respondent No. 8 was disqualified from being a member or
from voting on the no confidence motion. If her vote is excluded, then
the situation which emerges is that out of 8 members (after exclusion
of Respondent No. 8), there were only 5 votes polled in favour of the
rd
no confidence motion, which falls short of 2/3 majority for carrying
such no confidence motion. In my considered view, the decision of the
Supreme Court in the case of Ganesh Gurukule (supra) is on all fours
and is applicable in the present case. Thus, the no confidence motion
rd
cannot be said to have been passed or carried by 2/3 majority and in
accordance with law, and therefore, the same deserves to be set aside.
9. This takes me to the contention based on the election of
the Petitioner as an Upsarpanch. There can be no manner of doubt that
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917 - WP. 10308-19
this Court would not issue any writ or set aside any order (even if
illegal), if it has the effect of restoring or reviving an illegal order or a
situation. Thus, the question is whether the Court can refuse to
interfere in the matter on the ground that the election of the Petitioner
as an Upsarpanch is otherwise illegal. Now, that election is not and
could not be a subject matter of challenge in this petition. That apart,
except the affidavit filed by Respondent No. 8, there is nothing on
record to show that she had voted in favour of the Petitioner at the
election of the Petitioner as an Upsarpanch.
10. At one stage, it was submitted by the learned counsel Mr.
Godbole that this Court may call for the record of the secret ballot at
the election of the Petitioner as an Upsarpanch to verify this aspect.
However, it is undisputed that the said election was conducted by
secret ballot, and therefore, even after calling such record, it would not
be possible to ascertain whether Respondent No. 8 had indeed voted in
favour of the Petitioner. The possibility of Respondent No. 8 now
filing affidavit, raising a challenge to the very election of the Petitioner
as Upsarpanch to get over an otherwise indefensible situation, cannot
be ruled out. In that view of the matter, it is not possible to accept the
contention based on the indefeasible election of the Petitioner as a
Upsarpanch on 9.4.2018 being illegal.
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. In the result, the following order is passed.
ORDER
(i) The petition is allowed.
th
(ii) The impugned judgment and order dated 13 September,
2019 passed by the Collector, Pune in Dispute Application
No. 62 of 2019, and the declaration by the Tahsildar, dated
th
16 July, 2019, are hereby set aside.
(iii) The Petitioner continues to be the Upsarpanch of village
Naigaon, Tahsil Haveli, district Pune.
(iv) Rule is made absolute in the aforesaid terms, with no order
as to costs.
Sd/-
C. V. BHADANG, J.
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VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 10308 OF 2019
Kalpana Gangaram Chaudhari … Petitioner
Vs.
Tahsildar,
Taluka Haveli, District Pune & Ors. … Respondents
*
Mr. Chaitanya Nikhte, for the Petitioner.
Mr. A. P. Vanarse, AGP for Respondent Nos. 1, 3 and 12.
Mr. G. S. Godbole a/w Aditya P. Shirke, for Respondent Nos. 5 to 10.
*
CORAM : C. V. BHADANG, J.
DATE : FEBRUARY 25, 2020
ORAL JUDGMENT :
1. Rule made returnable forthwith. Learned AGP waives
notice for Respondent Nos. 1, 3 and 12; the learned counsel Mr.
Godbole waives notice for Respondent Nos. 5 to 10. By consent of
parties, petition is taken up for final disposal.
2. The challenge in this petition is to the judgment and order
th
dated 13 September, 2019 passed by the Collector, Pune in Dispute
Application No. 62 of 2019. By the impugned order, the learned
th
Collector has confirmed the no confidence motion dated 16 July,
2019 carried against the Petitioner, and the consequent declaration
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th
dated 16 July, 2019 granted by the Tahsildar.
th
3. The brief facts are that on 9 April, 2018, the Petitioner
was elected as a Upsarpanch of village Gram Panchayat Naigaon,
Tahsil Haveli, district Pune. The Gram panchayat consists of nine
members and the Petitioner secured 5 votes in a secret ballot in the
th
polling, held on 9 April, 2018 for election of Upsarpanch.
Subsequently, the Respondent Nos. 4 to 11 moved a motion of no
confidence against the Petitioner, which was considered in a meeting
th
dated 16 July, 2019. The said motion was passed by a majority of 6
votes against 3 and consequently, the Petitioner ceased to be the
Upsarpanch of the said village. The Petitioner unsuccessfully
challenged the same before the Collector. Hence, this petition.
4. I have heard the learned counsel for the parties. Perused
record.
5. It is submitted by the learned counsel for the Petitioner
that one of the members Sau. Sunita Gaikwad (Respondent No. 8) was
disqualified from being a member of the panchayat, as she had failed
to produce a caste validity certificate within time, as prescribed. She
was belonging to a Scheduled Tribe category, and the learned counsel
points out that in fact the Caste Scrutiny Committee had rejected her
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claim. It is submitted that once the caste validity certificate is not
produced within time, the disqualification is automatic. The learned
counsel points out that in the voting by show of hands, admittedly,
Respondent No. 8 had voted in favour of the no confidence motion.
6. It is submitted that if the vote of Respondent No. 8 is
excluded, then the no confidence motion, which was carried by 5 votes
against 8 votes (inasmuch as Respondent No. 8 was disqualified from
being a member and from participating in the voting), cannot be said to
rd
have been carried by 2/3 majority, as required by law. For this
purpose, reliance is placed on the decision of the Supreme Court in the
1
case of Ganesh Gurkule Vs. Tahsildar, Sinnar & Ors. . He therefore,
submits that the no confidence motion has not been legally carried and
the learned Collector was in error in refusing to set it aside.
7. Mr. Godbole, the learned counsel for Respondent Nos. 5
to 10 in all fairness did not dispute that Respondent No. 8 had voted in
favour of the no confidence motion. However, it is submitted that
Respondent No. 8 had voted in favour of the Petitioner when she was
elected as Upsarpanch on 9.4.2018. The learned counsel points out
that the Petitioner was elected as Upsarpanch by a margin of one vote,
1 (2019) 3 SCC 211
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as she had secured 5 votes as against 4 votes, secured by her rival. It is
submitted that if the vote of Respondent No. 8 is excluded as she was
disqualified, the very election of the Petitioner as Upsarpanch becomes
illegal. The learned counsel submitted that this Court would not issue
a writ or set aside an order (even assuming it to be illegal), if it has the
effect of reviving or affirming, an otherwise invalid order or a
situation. In short, it is submitted that even assuming that the no
rd
confidence motion was not carried with the required 2/3 majority, still
this Court should refrain from interfering with the impugned order, as
it will have the effect of restoring the Petitioner as Upsarpanch, when
her election as a Upsarpanch is illegal, as both Petitioner and her rival
would have secured 4 votes (after exclusion of vote of Respondent
No. 8). It is submitted that Respondent No. 8 has filed an affidavit
stating that she had voted in favour of the Petitioner in her election as
Upsarpanch, to which there is no counter.
8. I have carefully considered the rival contentions of the
parties. It is not in dispute that the impugned no confidence motion
against the Petitioner was carried by 6 votes out of total 9 members
present and voting. It is also undisputed that the said motion was
carried by open voting i.e. by show of hands, in which Respondent No.
8 had voted in favour of the no confidence motion. It is also not in
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dispute and in fact it is a matter of record that Respondent No. 8 had
failed to produce her cast validity certificate within time after her
election, her caste claim has been rejected by the Caste Scrutiny
Committee. It is now well settled that requirement to submit such
caste validity certificate, within prescribed period is mandatory, and
failure to do so results in disqualification, which is automatic. The
reasoning articulated by the learned Collector that there is no
declaration of such disqualification, and therefore, it cannot be acted
upon, to my mind, cannot be accepted. Thus, for all practical
purposes, Respondent No. 8 was disqualified from being a member or
from voting on the no confidence motion. If her vote is excluded, then
the situation which emerges is that out of 8 members (after exclusion
of Respondent No. 8), there were only 5 votes polled in favour of the
rd
no confidence motion, which falls short of 2/3 majority for carrying
such no confidence motion. In my considered view, the decision of the
Supreme Court in the case of Ganesh Gurukule (supra) is on all fours
and is applicable in the present case. Thus, the no confidence motion
rd
cannot be said to have been passed or carried by 2/3 majority and in
accordance with law, and therefore, the same deserves to be set aside.
9. This takes me to the contention based on the election of
the Petitioner as an Upsarpanch. There can be no manner of doubt that
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this Court would not issue any writ or set aside any order (even if
illegal), if it has the effect of restoring or reviving an illegal order or a
situation. Thus, the question is whether the Court can refuse to
interfere in the matter on the ground that the election of the Petitioner
as an Upsarpanch is otherwise illegal. Now, that election is not and
could not be a subject matter of challenge in this petition. That apart,
except the affidavit filed by Respondent No. 8, there is nothing on
record to show that she had voted in favour of the Petitioner at the
election of the Petitioner as an Upsarpanch.
10. At one stage, it was submitted by the learned counsel Mr.
Godbole that this Court may call for the record of the secret ballot at
the election of the Petitioner as an Upsarpanch to verify this aspect.
However, it is undisputed that the said election was conducted by
secret ballot, and therefore, even after calling such record, it would not
be possible to ascertain whether Respondent No. 8 had indeed voted in
favour of the Petitioner. The possibility of Respondent No. 8 now
filing affidavit, raising a challenge to the very election of the Petitioner
as Upsarpanch to get over an otherwise indefensible situation, cannot
be ruled out. In that view of the matter, it is not possible to accept the
contention based on the indefeasible election of the Petitioner as a
Upsarpanch on 9.4.2018 being illegal.
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. In the result, the following order is passed.
ORDER
(i) The petition is allowed.
th
(ii) The impugned judgment and order dated 13 September,
2019 passed by the Collector, Pune in Dispute Application
No. 62 of 2019, and the declaration by the Tahsildar, dated
th
16 July, 2019, are hereby set aside.
(iii) The Petitioner continues to be the Upsarpanch of village
Naigaon, Tahsil Haveli, district Pune.
(iv) Rule is made absolute in the aforesaid terms, with no order
as to costs.
Sd/-
C. V. BHADANG, J.
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