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Judgment
B. P. DHARMADHIKARI,J.
1.Heard Shri S.D. Chopde, learned Counsel for the petitioner, Shri A. Chutke, learned A.G.P. for respondent nos. 1 and 2 and Shri M.V. Bute,
learned Counsel for respondent no.4.
2.Following question has been referred to this Court by the learned Single Judge on 24.02.2017, while admitting Writ Petition No.5411/2017.
Whether the Collector while exercising his power under Section 16 of the Maharashtra Village Panchayats Act, 1958 can determine whether the
vacancy has arisen upon disqualification of a person who was found ineligible to be elected as member of Gram Panchayat ?
3.Thus, controversy whether order passed by the Additional Commissioner dismissing appeal of petitioner or then earlier order passed by the
Additional Collector disqualifying her on the ground that at the time of submission of nomination paper, she had not completed 21 years of her age, is
correct or not, is not in dispute before this Court.
4.With the assistance of learned counsel representing the parties, we have looked into the provisions of Sections 13, 14 and 16 of the Maharashtra
Village Panchayats Act, 1958, (hereinafter referred to as ""the Order 1958 Act"" for short).
5.Parties have invited our attention to Section 14[1][a-1] and [k] of the 1958 Act. They also submit that all provisions need to be interpreted together
harmoniously.
6.Section 16 is on disability from continuing as a Member. Sub- section [1][a] thereof envisages a disqualification mentioned in Section 14 existing at
the time of election, while clause [b] thereof, contemplates incurring of such disqualification during the term for which the member has been elected.
Section 14 which prescribes disqualification, does not prescribe any Forum for adjudication of any disputed issue. Forum prescribed is only under
Section 16. Section 16[2] contemplates adjudication of dispute which may arise suo motu or on application by an aggrieved party. Such a dispute is to
be resolved by the Collector only. Words ""whether a vacancy has occurred under this section"" cover Section 16[1] only, and Section 16[1][a] in turn
extends itself to Section 14, if disqualification stipulated therein was already incurred before election, therefore, is a moot question. Sub-section [b]
extends jurisdiction of Collector even to decide the disputes, when disqualification is incurred after such election. Thus, every dispute relating to
disqualification under Section 14 is to be adjudicated under Section 16[2] only. Declaration of vacancy under Section 16[2], therefore cannot be
viewed as one for the purpose of Section 16, independent of, or ignoring Section 141958 Act does not stipulate and envisage any vacancy under
Order Section 14 thereof.
7.The learned Single Judge of this Court in a judgment reported at 2004 [2] Mh.L.J. 48 (Tulsabai Maroti Shelke .vrs. Additional Commissioner,
Amravati), has construed the above mentioned highlighted part of Section 16[2] as confining jurisdiction of Collector to declaration of vacancy only for
Section 16 at the time of election. The fact that there is no other Forum prescribed for adjudication of disqualification under Section 14 or then under
Section 16[1][b], therefore, was not argued and it's impact was not required to be considered by the learned Single Judge. Sub-section [2] of said
Section itself stipulates that till the Collector decides the question, member cannot be disallowed under sub-section [1] from continuing as a Member.
This reference to sub-section [1] of Section 16 is itself sufficient to show that a Member who has incurred disqualification already before his election
or then a Member who incurs it subsequently after his election, can continue as a Member till dispute about disqualification is decided by the Collector.
Thus, declaration of vacancy under Section 16 is for the purposes of entire sub-section [1] of Section 16. Section 16 in turn covers all disqualifications
prescribed under Section 14 and adjudication thereof.
8.In paragraph no.6 of judgment in case of Tulsabai .vrs. Additional Commissioner (supra), Section 14[a-1] has been looked into. The said
disqualification under Clause [a-1] needs to be appreciated in the backdrop of Article 173[b] of the Constitution of India. This clause requires the
Order aspirant / candidate to be not less than 25 years of age in case of seat in Legislative Assembly and not less than 30 years of age, in case of
seat in Legislative Council. Thus, a citizen below 25 years of age cannot contest the election for the Legislative Assembly of State of Maharashtra.
Section 14[1] [a-1] contemplates an order of disqualification already passed. By such an order of disqualification, a citizen is already found disqualified
to continue as a Member of Legislative Assembly, as he was less than 25 years of age on the date of his election to Legislative Assembly.
9.Proviso to this Clause [a-1] is added deliberately because under Section 13 of the 1958 Act, a citizen can become Member of Gram Panchayat, if he
is not less than 21 years of age on the last date fixed for making nomination. Hence, merely because a Member of Legislative Assembly is found
disqualified for that election as he is less than 25 years of age, he is not disqualified to become a Member of Gram Panchayat, if he was not less than
21 years of age on the last date of filing of nomination in the Gram Panchayat elections. It is this distinction, which has been taken note by the said
proviso.
10.Very same distinction has been taken note by other Single Judge of this Court in Writ Petition No.1237/2012. In paragraph no.12 of the said
judgment in Writ Petition No. 1237/2012 (Popat Bajirao Gaikwad .vrs. Dinkar Bhagwanrao Gaikwad and others), facts show that the petitioner had
not completed 21 years of age, and hence he was disqualified. Learned Order Single Judge has found no substance in the petition and that petition was
dismissed. While dismissing the said petition, in paragraph no.12, reference has been made to judgment in case of Tulsabai (supra).
11.In case of Tulsabai (supra), though the Additional Collector had found respondent to be less than 21 years of age at the time of nomination, said
authority declined to exercise the powers under Section 16 of the 1958 Act. The Additional Collector has upheld this refusal to exercise powers.
Paragraph no.3 of the said judgment shows that respondent no.3 Shara, had not completed age of 20 years on the date of submission of nomination. In
paragraph No.7 in case of Tulsabai (supra), the power of Collector to determine occurrence of vacancy has been linked with the election of
Legislative Assembly of Maharashtra State. Learned Single Judge found that there was no order of any authority disqualifying respondent no.3 for the
purpose of election to Legislature of Maharashtra State. Learned A.G.P. has rightly invited our attention to provisions of Section 14[1][k] to urge that
independent of such an order, disqualification needs to be ascertained in terms of Section 13 of 1958 Act. We find substance in said contention.
12.However, as the Writ Petition has been admitted by the learned Single Judge for final hearing and only limited question has been referred to this
Court, in the light of discussion above, we answer the question referred in affirmative i.e. Collector has jurisdiction to determine whether vacancy has
Order arisen upon disqualification of a person who is found ineligible to be elected as a member of Gram Panchayat.
13.Accordingly, reference is answered in affirmation. Registry to place the matter before learned Single Judge for further consideration.