A petitioner must adhere to the provisions contained in the Statute and must take the consequences on the failure to abide by the stipulation contained therein: Bombay High Court
A petitioner must adhere to the provisions contained in the Statute and take the consequences on the failure to abide by the stipulation contained therein, this has been observed in the recent matter of Fakira Devram Sansare v. The Collector &amp; Ors. [Writ Petition No.14824 OF 2021], listed Bombay High Court, Bench at Aurangabad. The final proceedings of the case were taken place on February 2nd 2022, and the said proceedings were presided by a single judge bench of Justice SMT. Bharati Dangre. The petitioner contested the elections and came to be elected as a ‘Sarpanch’ of village panchayat from the seat reserved for scheduled category. The candidate, had submitted an affidavit before the Returning Officer while filing of his nomination form and had undertaken to produce the validity certificate within a period of one year from being declared elected, but he did not obtained the validity certificate.   Hence, he incurred a disqualification to continue as a Sarpanch and his election was be deemed to have been terminated retrospectively. While the case being heard, many landmark judgments of Shankar Raghunath Devre (Patil) v. State of Maharashtra &amp; Ors. [2019 (3) SCC 220], Anant H. Ulahalkar &amp; anr. v. Chief Election Commissioner &amp; Ors. [2017 (1) B.C.R. 230] were quoted in order to put emphasize on the pertinent case. The court also places reliance on Jyoti Basu and other v. Debi Ghosal &amp; Ors. [AIR 1982 SCC 983] where it was held that “Outside of Statute, there is no right to elect, no right to be elected and no right to dispute the election. Statutory creations they are, and therefore, subject to statutory limitation.”  Court, after perusal of facts and evidences, held that “The petitioner, therefore, cannot travel beyond the Statute, which govern his election and on failure to produce validity certificate within period stipulated, he must face the consequences provided by the Statute.” In addition to the above, the court related the case with the principle and held that “In the light of the position of law which has been crystallized to the above effect, the petitioner who has contested the election for reserved seat and got himself declared, must adhere to the provisions contained in the Statute and must take the consequences on the failure to abide by the stipulation contained therein.” “The impugned order passed by the Collector, thereby terminating him from the post of Sarpanch of village panchayat Kanadgaon with retrospective effect, is just and proper and deserves to be upheld.” Judgment reviewed by Pranav Sharma
 on 08 02 2022 on 09 02 14824.21wp SACHIN(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.14824 OF 2021 Fakira S o Devram Sansare Age: 50 years Occu: Agril and Social worker R o. Kanadgaon Tq. Rahuri Dist. Ahmednagar ….PETITIONERVERSUS1. The Collector Ahmednagar Dist. Ahmednagar2.The Tahsildar Rahur Tq. Rahuri Dist. Ahmednagar3.Bhausaheb S o Baburao Chokhar Age: 40 years Occu: Nil R o. Village Kanadgaon Tq. Rahuri Dist. Ahmednagar ….RESPONDENTSMr S. R. Andhale Advocate for petitioner Mr A. S. Jagatkar A.G.P. for respondent Nos.1 & 2Mr T. J. Momin Advocate for respondent No.3 CORAM : SMT. BHARATI DANGRE J. DATE : 2nd February 2022JUDGMENT:1.The petitioner raise a challenge to his disqualification as aMember Sarpanch of village panchayat Kanadgaon Tq. Rahuri on 08 02 2022 on 09 02 14824.21wp SACHIN(2) Dist. Ahmednagar by invoking the provisions of Section 10(1 A)of the Maharashtra Village Panchayats Act 1959election he preferred an application to the District Caste ScrutinyCommittee Ahmednagar for being conferred with validitycertificate and pending the receipt of the said certificate hecontested the elections and was declared elected to fill up the postreserved for scheduled caste.5.Respondent No.3 preferred an application before theCollector Ahmednagar on 25 01 2021 inviting attention of theCollector to the fact that the petitioner who was elected as aSarpanch of village panchayat Kanadgaon to fill up the postreserved for scheduled candidate had submitted an affidavitbefore the Returning Officer while filing of his nomination formand had undertaken to produce the validity certificate within aperiod of one year from being declared elected but till date hehas not obtained the validity certificate and hence he has incurreda disqualification to continue as a Sarpanch and his election shallbe deemed to have been terminated retrospectively.6.Pertinent to note that on 15 11 2021 the Collector Ahmednagar issued a notice to the petitioner by inviting hisattention to Section 10 1A of the Maharashtra Village Panchayats on 08 02 2022 on 09 02 14824.21wp SACHIN(4) Act as amended by the Government Notification dated14 12 2018 which made it mandatory for a candidate electedupon the reserved post to produce the validity certificate within aperiod of one year from the date of he being declared as elected and on failure to produce the validity certificate his election shallbe deemed to have been terminated retrospectively and he shall bedisqualified for being a Member. By the aforesaid notice thepetitioner was specifically reminded that he was elected on thepost of Sarpanch reserved for scheduled category on 09 01 2020and therefore he should produce a proof of submitting his castecertificate for verification to the Caste Validity Committee on orbefore 26 11 2021. Failing to abide by the same he shall incur adisqualification.7.The petitioner responded to the said communication on25 011 2021 wherein he stated that he had forwarded his castecertificate for it’s verification to the Scrutiny Committee but hehas not yet obtained the said certificate and therefore he cannotproduce the same. He specifically pleaded that he is not at fault as he had forwarded his certificate for verification prior to his on 08 02 2022 on 09 02 14824.21wp SACHIN(5) election but the Committee has not yet issued him a validitycertificate. This delay was sought to be condoned and he soughtthe time to be extended to submit the validity certificate. Alongwith his application he also forwarded a letter addressed to theCommittee on 20 08 2020 by which he had forwarded somedocuments to the Committee which were found to be deficient indetermining his claim.8.The request made by the petitioner to extend the time forfiling the validity certificate was not attended to and hisgrievance is that the Collector Ahmednagar by his order dated02 12 2021 granted the application filed by respondent No.3 anddeclared the petitioner to be disqualified to hold the post ofSarpanch ad terminated his election to the post of Sarpanch withretrospective effect. In the impugned order the Collector recorded a finding tothe effect that the elected candidate i.e. the petitioner who waselected to the post of Sarpanch has failed to produce validitycertificate within a period of one year from the date of declarationof the result of the elections and the necessary consequences that on 08 02 2022 on 09 02 14824.21wp SACHIN(6) on failure to produce the validity certificate within a periodprescribed his election shall be deemed to have been terminatedretrospectively. It is this order which is the subject matter of thepresent writ petition.9.The learned Counsel Shri. Andhale appearing for thepetitioner would submit that on 15 12 2021 the District CasteCertificate Scrutiny Committee Ahmednagar has validated hiscaste certificate belonging to ‘Mahar’ caste and certified that hiscaste claim is found to be correct and his caste certificate dated02 02 2007 is validated with a declaration that the petitionerbelong to ‘Mahar’ a scheduled caste. Relying upon the said certificate the learned Counsel forthe petitioner would vehemently submit that the petitioner hadapplied for validating his caste certificate to the ScrutinyCommittee on 21 12 2019 i.e. much before of his declaration asSarpanch of the Grampanchayat but the Committee consumedtime in following the procedure before confirming him the statusof a scheduled caste and before his caste certificate is validated.The learned Counsel would submit that it is not his fault that the on 08 02 2022 on 09 02 14824.21wp SACHIN(7) Committee did not issue the validity certificate within a period ofone year but for that lapse he cannot be made to suffer.Ultimately according to the learned Counsel as on date there is adeclaration in his favour that he belong to scheduled caste and isentitled to hold the post of Sarpanch of village Kanadgaon. Theimpugned order according the the learned Counsel is clearlyprejudicial to the interest of the petitioner when obtaining thevalidity certificate was not within his control and the submissionis he has complied with the requisite by submitting an applicationin time and also curing the lacuna which is pointed by theCommittee by submitting additional documents but if theCommittee did not complete the procedure of verifying his castestatus within a period of one year he should not suffer theextreme consequence of being removed from the post ofSarpanch particularly when in the particular period the wholenation was grappling with the pandemic even the working of theScrutiny Committee was affected and he could not be issued thevalidity certificate within a period of one year. on 08 02 2022 on 09 02 14824.21wp SACHIN(8) The learned Counsel has placed reliance upon an orderpassed by the Hon’ble Apex Court in Suo motu Writ Petitionproceedings before the Scrutiny Committee which is also a quasijudicial authority. 10.The learned Counsel made every attempt to urge that sinceobtaining the validity certificate was interrupted by theextraordinary circumstances he should be benefited and it shallbe ensured that for no fault on his part the action of terminationfrom the post of Sarpanch be set aside. Per contra the learned Counsel for respondent No.3 and thelearned Asstt. Govt. Pleader would submit that the amendmentprescribed in Section 10 1A of the said Act is adhered to by theCollector in passing the impugned order and by relying upon theprovisions of Section 10 1A the submission of the respondents is that as a person who has applied to the Scrutiny Committee forverification of his caste certificate before the date of filing ofnomination paper but has not received the validity certificate onthe date of his nomination shall submit a true copy of theapplication preferred by him to the Scrutiny Committee forissuance of validity certificate or any proof of having made suchan application and he shall also submit an undertaking that within on 08 02 2022 on 09 02 14824.21wp SACHIN(10) a period of 12 months from the date on which he declared elected the validity certificate shall be issued by the Scrutiny Committee.It is submitted that by virtue of the proviso appended to the saidSection if a person fails to produce the validity certificate withinthe prescribed period from the date on which he is declaredelected his election shall be deemed to have been terminatedretrospectively and he shall be disqualified for being a Member. By relying upon the decision of the Full Bench of this Court in case of Anant H. Ulahalkar & anr. Vs. Chief ElectionCommissioner & others 2017B.C.R. 230 the learnedCounsel for the respondents submits that there is no discretion leftwith the authority to continue the petitioner as a Sarpanch sincethe proviso contemplated a deeming fiction where on failure toproduce the validity certificate within a period of 12 months fromthe date of his election he shall be deemed to have beenterminated retrospectively and disqualified as a Member. Thesaid Section being held to be mandatory it is argued that theelection of the petitioner is deemed to have been terminated w.e.f.10 01 2020 and no power is left with any authority to save this on 08 02 2022 on 09 02 14824.21wp SACHIN(11) deeming consequences as contemplated under the proviso. Thelearned Counsel therefore have prayed for dismissal of thepetition in the light of the imperative nature of the provision onfailure to produce the validity certificate within a period of 12months from the date of election. 11.The full Bench of the Bombay High Court in case of AnantH. Ulahalkarwhere three questions were referred to theFull Bench for reference answered the same in following words :“2.The genesis of this reference is the order dated 11August 2015 made in the present writ petition by theDivision BenchWhether the time limit prescribed underSection 9 A of he Maharashtra Municipal NagarPanchayats and Industrial Township Act 1965 forsubmission of caste validity certificate by electedCouncilor is mandatory in nature on 08 02 2022 on 09 02 14824.21wp SACHIN(12)Whether failure on the part of the personelected as a Councilor to produce the castevalidity certificate within prescribed period of sixmonths from the date of which he was declaredelected irrespective of facts and circumstancesand eventuality beyond the control of such personto produce the validity certificate wouldautomatically result in termination of his electionwith retrospective effect Whether the validation of caste claim of theelected Councilor by the Scrutiny Committeebeyond the prescribed period would automaticallyresult into termination of such Councilor withretrospective operation ”12.The Full Bench in the above case was considering Section9A of the Maharashtra Municipal Councils Nagar Panchayats andIndustrial Townships Act 1965 which is pari materia to Section10 1A of the Maharashtra Village Panchayats Act 1959. The FullBench after elaborate consideration held that the requirement ofsubmitting caste certificate within the period stipulated is amandatory requirement and in the relevant observations from theJudgment of the Full Bench need a reproduction : on 08 02 2022 on 09 02 14824.21wp SACHIN(13) “98. In the present case also the legislature inenacting Section 9 A has provided for a statutoryfiction which is evident from the use of expression "hiselection shall be deemed to have been terminatedretrospectively and he shall be disqualified being aCouncilor". The statutory fiction must be allowed tohave its full play. No other provision or reason hasbeen pointed out to take the view that consequencesprescribed under second proviso to Section 9 A are notautomatic or would require any further adjudicationonce it is established that the person elected has failedto produce the Validity Certificate within a stipulatedperiod of six months from the date of his election. 99.The validation of caste claim of the electedCouncillor by the Scrutiny Committee beyond theprescribed period would have no effect upon thestatutory consequences prescribed under the secondproviso to Section 9 A i.e. deemed retrospectivetermination of the election of such Councillor and hisdisqualification for being a Councillor. The subsequentvalidation or issue of the Validity Certificate willtherefore be irrelevant for the purpose of restoration ofthe Councillor s election but such validation willobviously entitle him to contest the election to be held on 08 02 2022 on 09 02 14824.21wp SACHIN(14) on account of termination of his election and theconsequent vacancy caused thereby.100. In the result we hold that the time limit of sixmonths prescribed in the two provisos to Section 9A ofthe said Act within which an elected person is requiredto produce the Validity Certificate from the ScrutinyCommittee is mandatory. Further in terms of second proviso to Section 9 Aif a person fails to produce Validity Certificate within aperiod of six months from the date on which he iselected his election shall be deemed to have beenterminated retrospectively and he shall be disqualifiedfor being a Councillor. Such retrospective termination of his election anddisqualification for being a Councillor would beautomatic and validation of his caste claim after thestipulated period would not result in restoration of hiselection. The questions raised stand answeredaccordingly.” 13.This judgment of the Full Bench of the Bombay High Court came up for consideration before the Hon’ble Apex Court in case on 08 02 2022 on 09 02 14824.21wp SACHIN(15) of Shankar Raghunath DevreVs. State of Maharashtra& others 2019SCC 220 and the Hon’ble Apex Court afternoticing the provision upheld the decision of the Full Bench ofthe Bombay High Court that the Statute engrafts mandatoryrequirement in law and the observations of the Hon’ble ApexCourt read as under :“7.A proviso to the aforesaid main provision of theStatute was brought in subsequently which permitted acandidate to file his her nomination even in absence ofvalidity certificate provided he she enclose with thenomination a true copy of the application filed byhim her before the Scrutiny Committee and anundertaking that he she shall submit within period of sixmonths from the date of his her election the validitycertificate issued by the Scrutiny Committee.8.There is Second proviso which contemplates thaton failure of the person(s) concerned to produce thevalidity certificate within time frame stipulated hiselection “shall be deemed to have been terminatedretrospectively and he shall be disqualified for being aCouncillor” on 08 02 2022 on 09 02 14824.21wp SACHIN(16) 9.We have read and considered the very elaboratereasoning adopted by the Full Bench of the High Courtin coming to its conclusion that the aforesaid provisionsof the Statute engrafts a mandatory requirement in law.The High Court in our considered view very rightlycame to the aforesaid conclusion along with furtherfinding that equities in individual case(s) would not be agood ground to hold the provision to be directory. Infact the High Court has supported it’s decision byweighty reasons to hold that reading the provisions tobe directory would virtually amount to rendering thesame to be negatory.”13.The position of law as regards the provision contained in aStatute providing for election to a reserved seat to submit castecertificate and validity certificate are found in the distinctStatutes which include Section 5B of the Mumbai MunicipalCorporation Act 1888 Section 9 A of the MaharashtraMunicipal Councils Nagar Panchayats and Industrial TownshipsAct 1965 and Section 10 1A of the Maharashtra VillagePanchayats Act 1959. on 08 02 2022 on 09 02 14824.21wp SACHIN(17) 14.In case of Kesharben Murji Patel VS. State of Maharashtraand othersand in case of Tulip BrianMiranda Vs. State of Maharashtra and othersNomadic Tribes OtherBackward Classes and Special Backward CategoryCaste Certificate Act 2000and particularly by referring to sub section(4) ofSection 10 a similar conclusion was arrived at. At this juncture it is appropriate to take note of sub sectionof Section 10 of theAct of 2000 which reads thus : on 08 02 2022 on 09 02 14824.21wp SACHIN(18) “(4)Notwithstanding anything contained in any lawfor the time being in force a person shall bedisqualified for being a member of any statutory body ifhe has contested the election for local authority co operative society or any statutory body on the seatreserved for any of Scheduled Castes Scheduled Tribes De notified TribesNomadic Tribes Other Backward Classes or Special Backward Categoryby procuring a false Caste Certificate as belonging tosuch Caste Tribe or Class on such false CasteCertificate being cancelled by the Scrutiny Committee and any benefits obtained by such person shall berecoverable as arrears of land revenue and the electionof such person shall be deemed to have been terminatedretrospectively.”15.Recording that in order to translate the provision containedin the Act of 2000 relevant provisions came to be introduced inthe local enactments by the State Legislature relating to MunicipalCouncils Nagar Panchayats and Industrial Townships Act 1965and Maharashtra Village Panchayats Act etc by referring to therequirement contained in Section 5B of the Mumbai MunicipalCorporation Act 1888 by relying upon the Full Bench decision in on 08 02 2022 on 09 02 14824.21wp SACHIN(19) case of Anant H. Ulahalkarit was held that from the dateof coming into effect of amendment Act and the substitutedproviso it is imperative for the candidate contesting election from27 09 2018 to submit an undertaking that he will produce validitycertificate within a period of 12 months and if he does notproduce the same he would be deemed to have disqualifiedretrospectively. It was held that the Legislature has not conveyedany relaxation in it’s intention for consequence to fall. Thefollowing observation is relevant :“24. A Full Bench of this Court has in great detail dealtwith the result why it is construed the stipulation of timelimit contained in the two provisos to Section 9A withinwhich the person elected is required to produce the validitycertificate from Scrutiny Committee to be mandatory.Failure to comply with the stipulation resultedconsequences. The consequences must fall “whatever maybe the reason for non production of the validity certificate.The State Legislature being conscious of the difficultiesbeing faced by the candidates has stepped in and save thedisqualification from the retrospective effect but from aparticular stipulated date and not from the time and furtherprovided for a window of 15 days from the date of coming on 08 02 2022 on 09 02 14824.21wp SACHIN(20) into effect of the Act namely period of 15 days to producethe validity certificate in order to save such candidate fromaxe of disqualification falling on him but for such adisqualification is incurred by deeming provision.” Thelegislature has not conveyed any relaxation in it’s intentionfor the consequence to hold in case of non production ofvalidity certificate within the period undertaken by thecandidate. We have therefore not inclined to accept thesubmission of the learned Senior Counsel and be say so inthe light of authoritative pronouncement of the Full Benchon the said point and since according to us the amendedlegislation do not change intention of the Statute to make itmandatory.”The aforesaid decision came to be upheld by the Hon’bleApex Court and has now become a settled position of law.16.In the light of the position of law which has beencrystallized to the above effect the petitioner who has contestedthe election for reserved seat and got himself declared mustadhere to the provisions contained in the Statute and must take theconsequences on the failure to abide by the stipulation containedtherein. on 08 02 2022 on 09 02 14824.21wp SACHIN(21) 17.In Jyoti Basu and other Vs. Debi Ghosal and others AIR1982 SCC 983 the Hon’ble Apex Court has held as under :“The right to elect fundamental though it is to democracyis anomalously enough neither a fundamental right nor aCommon Law Right. It is pure and simple a statutoryright. So is the right to be elected. Outside of Statute thereis no right to elect no right to be elected and no right todispute the election. Statutory creations they are andtherefore subject to statutory limitation.18.The petitioner therefore cannot travel beyond the Statute which govern his election and on failure to produce validitycertificate within period stipulated he must face the consequencesprovided by the Statute. The impugned order passed by theCollector thereby terminating him from the post of Sarpanch ofvillage panchayat Kanadgaon with retrospective effect is just andproper and deserves to be upheld. Resultantly the writ petition is dismissed. Rule isdischarged. (SMT. BHARATI DANGRE J.)sjk 