# LAXMIBAI v. THE COLLECTOR, NANDED & ORS

- **Citation:** [2020] 2 S.C.R. 880
- **Court:** Supreme Court of India
- **Decided:** 2020-02-14
- **Case number:** Civil Appeal No. 1622 of 2020
- **Bench:** A. M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/laxmibai-v-the-collector-nanded-ors-34237
- **Pages:** 27

## Headnote

Maharashtra Village Panchayats Act, 1959: s.14B - Election
of Gram Panchayat - Appellant elected as member of village
Panchayat - Disqualification of appellant on account of nonsubmission of election expenses within the period prescribed - Held:
A perusal of s.14B shows that the State Election Commission is to
be satisfied as to whether a person has no good reason or
justification for the failure to furnish account of election expenses
- Secondly in terms of sub-section (2) for the reasons to be recorded,
the disqualification under sub-section (1) can be removed or the
period of disqualification can be reduced - In the instant case,
explanation of appellant that he was advised bed rest on account
of hypertension and diabetes which caused unintended delay in
furnishing election expenses was not accepted - Collector passed
order disqualifying the appellant for a period of five years to be
member of Gram Panchayat - Appeal dismissed for the reason that
the medical certificate was not issued by the Competent Authority -
High Court while disposing of writ petition held that copy of medical
certificate tendered by the appellant had no particulars such as
name, diagnosis, date and reference number and the said certificate
was issued by the private hospital bearing only a stamp of doctor
and the said document cannot be relied upon and if the authorities
did not accept it, there was no error in the said view - There is no
reason to take a different view than the view affirmed by the High
Court.
Maharashtra Village Panchayats Act, 1959: s.14B - Plea of
appellant was that there was delay of 15 days in submitting the
election expenses and, therefore, disqualification for a period of
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five years was disproportionate to the default committed by her -
Held: s.14B empowers the Election Commission to pass a just order
of disqualification - The extent of period of disqualification has to
be in proportion to the default - In the instant case, the order of
disqualification for a period of five years was without taking into
consideration the extent of default committed by the appellant -
Such mechanical exercise of power without any adequate reasons,
rendered the order of disqualification for a period of five years as
illegal and untenable - Consequently, the order passed by the
Collector and subsequent orders in appeal and in the writ petition
are set aside in part to the extent of prescribing disqualification for
a period of five years - Matter remitted to the Collector to take into
consideration the period of delay/default, the purport for which
the election expenses are sought to be furnished and that the order
of disqualification operates from the date of the order including
delay in passing the order of disqualification - Election laws.
Maharashtra Village Panchayats Act, 1959: s.14B - Whether
provision of s.14B, mandatory or directory - Held: In s.14B, there
is no prohibitive or negative expressions used as it empowers the
Election Commission to pass a just order of disqualification - Subsection (1) of s.14B empowers the State Election Commission to pass
an order of disqualification of a candidate, if the candidate fails to
lodge account of election expenses for lack of good reason or without
any justification - Such satisfaction is required to be recorded by
the Election Commission - Since authority is vested with power to
reduce the period of disqualification, therefore, makes the provision
directory.
Maharashatra Zilla Parishads and Panchayat Samitis Act,
1961: s.15B - Elections of Panchayat Samiti - Disqualification of
appellant for contesting elections for the period of five years on
account of non-submission of election expenses within period
prescribed - Meanwhile, elections of Gram Panchayat were notified
and appellant submitted his nomination for the post of Sarpanch -
Objection against it was rejected by the Returning Officer and
appellant was duly elected to the post of Sarpanch - Retu

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SUPREME COURT REPORTS
[2020] 2 S.C.R.
LAXMIBAI
v.
THE COLLECTOR, NANDED & ORS.
(Civil Appeal No. 1622 of 2020)
FEBRUARY 14, 2020
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
Maharashtra Village Panchayats Act, 1959: s.14B - Election
of Gram Panchayat - Appellant elected as member of village
Panchayat - Disqualification of appellant on account of nonsubmission of election expenses within the period prescribed - Held:
A perusal of s.14B shows that the State Election Commission is to
be satisfied as to whether a person has no good reason or
justification for the failure to furnish account of election expenses
- Secondly in terms of sub-section (2) for the reasons to be recorded,
the disqualification under sub-section (1) can be removed or the
period of disqualification can be reduced - In the instant case,
explanation of appellant that he was advised bed rest on account
of hypertension and diabetes which caused unintended delay in
furnishing election expenses was not accepted - Collector passed
order disqualifying the appellant for a period of five years to be
member of Gram Panchayat - Appeal dismissed for the reason that
the medical certificate was not issued by the Competent Authority -
High Court while disposing of writ petition held that copy of medical
certificate tendered by the appellant had no particulars such as
name, diagnosis, date and reference number and the said certificate
was issued by the private hospital bearing only a stamp of doctor
and the said document cannot be relied upon and if the authorities
did not accept it, there was no error in the said view - There is no
reason to take a different view than the view affirmed by the High
Court.
Maharashtra Village Panchayats Act, 1959: s.14B - Plea of
appellant was that there was delay of 15 days in submitting the
election expenses and, therefore, disqualification for a period of
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five years was disproportionate to the default committed by her -
Held: s.14B empowers the Election Commission to pass a just order
of disqualification - The extent of period of disqualification has to
be in proportion to the default - In the instant case, the order of
disqualification for a period of five years was without taking into
consideration the extent of default committed by the appellant -
Such mechanical exercise of power without any adequate reasons,
rendered the order of disqualification for a period of five years as
illegal and untenable - Consequently, the order passed by the
Collector and subsequent orders in appeal and in the writ petition
are set aside in part to the extent of prescribing disqualification for
a period of five years - Matter remitted to the Collector to take into
consideration the period of delay/default, the purport for which
the election expenses are sought to be furnished and that the order
of disqualification operates from the date of the order including
delay in passing the order of disqualification - Election laws.
Maharashtra Village Panchayats Act, 1959: s.14B - Whether
provision of s.14B, mandatory or directory - Held: In s.14B, there
is no prohibitive or negative expressions used as it empowers the
Election Commission to pass a just order of disqualification - Subsection (1) of s.14B empowers the State Election Commission to pass
an order of disqualification of a candidate, if the candidate fails to
lodge account of election expenses for lack of good reason or without
any justification - Such satisfaction is required to be recorded by
the Election Commission - Since authority is vested with power to
reduce the period of disqualification, therefore, makes the provision
directory.
Maharashatra Zilla Parishads and Panchayat Samitis Act,
1961: s.15B - Elections of Panchayat Samiti - Disqualification of
appellant for contesting elections for the period of five years on
account of non-submission of election expenses within period
prescribed - Meanwhile, elections of Gram Panchayat were notified
and appellant submitted his nomination for the post of Sarpanch -
Objection against it was rejected by the Returning Officer and
appellant was duly elected to the post of Sarpanch - Returning
Officer held that disqualification was applicable only for the
LAXMIBAI v. THE COLLECTOR, NANDED & ORS.
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elections of Zilla Parishads and Panchayat Samitis and not for
elections of Gram Panchayat - Order of Returning Officer rejecting
objection challenged before High Court - Writ petition also filed
by appellant challenging disqualification order passed by Collector
- High Court dismissed writ petition of the appellant while writ
petition filed by objector was partly allowed by setting aside the
order passed by Returning officer rejecting the objections raised
by him - On appeal, held: Art.243-O of the Constitution of India
provides that no election to any panchayats shall be called in
question except by an election petition presented to such authority
and in such manner as provided for by or under any law made
under the legislature of the State - The dispute in these appeals did
not pertain to election to either House of the Parliament but to a
local body - The constitutional bar is contained in Art.243-O of the
Constitution of India in furtherance of which s.15A was inserted in
the year 1994 - s.10A of the 1959 Act and s.9A of the 1961 Act
read with Arts.243-K and 243-O, are pari materia with Art.324 of
the Constitution of India - The remedy of an aggrieved person
accepting or rejecting nomination of a candidate is by way of an
election petition in view of the bar created under s.15A of the 1959
Act - The said Act is a complete Code providing machinery for
redressal to the grievances pertaining to election as contained in
s.15 of the 1959 Act - High Court though exercises extraordinary
jurisdiction under Art.226 of the Constitution of India but such
jurisdiction is discretionary in nature and may not be exercised in
view of the fact that an efficacious alternative remedy is available
and more so exercise restraint in terms of Art.243-O of the
Constitution of India - Once alternate machinery is provided by
the statute, the recourse to writ jurisdiction is not an appropriate
remedy - It is a prudent discretion to be exercised by the High Court
not to interfere in the election matters, especially after declaration
of the results of the elections but relegate the parties to the remedy
contemplated by the statute - In view of this, writ petition should
not have been entertained by the High Court - However, the order
of the High Court that the appellant has not furnished the election
expenses incurred on the date of election did not warrant any
interference - Constitution of India - Arts.243K, 243O and 324 -
Election-Laws.
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Interpretation of Statutes: Whether a provision is mandatory
or directory - Prohibitive or negative words are ordinarily indicative
of mandatory nature of the provision - Maharashtra Village
Panchayats Act, 1959 - s.14B.
Disposing of the appeals, the Court
HELD: 1. The purity and transparency in election process
does not give unbridled and arbitrary power to the Election
Commission to pass any whimsical order without examining the
nature of default. The extent of period of disqualification has to
be in proportion to the default. The Election Commission has to
keep in mind that by such process, an election of duly elected
candidate representing collective will of the voters of the
constituency is being set at naught. [Para 18][893-B-D]
Union of India & Ors. v. A.K. Pandey (2009) 10 SCC
552 : [2009] 14 SCR 528; Chief Executive Officer,
Krishna District Co-op. Central Bank Ltd. v.
K. Hanumantha Rao (2017) 2 SCC 528 - relied on
D. Venkata Reddy v. R. Sultan & Ors. (1976) 2 SCC
455; State of Punjab v. Baldev Singh (1999) 6 SCC
172 : [1999] 3 SCR 977; Tarlochan Dev Sharma v.
State of Punjab & Ors. (2001) 6 SCC 260 : [2001] 3
SCR 1146; Ravi Yashwant Bhoir v. District Collector,
Raigad & Ors. (2012) 4 SCC 407 : [2012] 3 SCR 775
- Distinguished.
2. The disqualification of a candidate for five years passed
under Section 14B of the 1959 Act leads to disqualification for
future election as well. Though, Section 14B of the 1959 Act
empowers the Commission to disqualify a candidate for a period
not exceeding five years from the date of the order, but to pass
an order of disqualification for five years, which may disqualify
him to contest the next elections as well requires to be supported
by cogent reasons and not merely on the fact of not furnishing of
election expenses. The order of disqualification for a period of
five years is without taking into consideration the extent of default
committed by the appellant and that the will of people is being
interfered with in the wholly perfunctory way. Such mechanical
LAXMIBAI v. THE COLLECTOR, NANDED & ORS.
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exercise of power without any adequate reasons, though required
to be recorded, renders the order of disqualification for a period
of five years as illegal and untenable. It is abdication of power
which is coupled with a duty to impose just period of
disqualification. Therefore, though the appellant could be
disqualified for a period upto five years, but such period of
disqualification must be supported by tangible reasons lest it
would border on being disproportionate. [Para 20][895-C-F]
3. The Collector shall pass the order afresh in respect of
period of disqualification in accordance with law preferably within
a period of one month from the date of receipt of a copy of this
judgment. The period of disqualification, if any, will be operative
from the date of the order passed earlier by the Collector on
9th August, 2018 and any elections held as a consequence of the
order of disqualification will abide the final order to be passed by
the Collector. [Para 21] [895-H; 896-A-B]
4. The 73rd Constitutional Amendment inserted Part IX in
the Constitution of India. Article 243-O of the Constitution of
India as inserted provides that no election to any panchayats shall
be called in question except by an election petition presented to
such authority and in such manner as provided for by or under
any law made under the legislature of the State. In terms of such
constitutional provisions, Section 15A was inserted by
Maharashtra Act No. 21 of 1994. The dispute in the present
appeals does not pertain to election to either House of the
Parliament but to a local body. The constitutional bar is contained
in Article 243-O of the Constitution of India in furtherance of
which Section 15A was inserted in the year 1994. [Paras 38,
39][901-E-F; 902-A-C]
Commissioner of Central Excise, New Delhi v. Hari
Chand Shri Gopal & Ors. (2011) 1 SCC 236 : [2010]
13 SCR 820 - held inapplicable.
Gokul Chandanmal Sangvi v. State of Maharashtra and
Others 2018 (4) Mh LJ 911; P. Punnuswami v. The
Returning Officer AIR 1952 SC 64 : [1952] SCR 218;
Mohinder Singh Gill & Anr. v. The Chief Election
Commissioner, New Delhi & Ors. (1978) 1 SCC 405 :
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[1978] 2 SCR 272; S. T. Muthusami v. K. Natarajan &
Ors. (1988) 1 SCC 572 : [1988] 2 SCR 759; Malam
Singh v. The Collector, Sehore AIR 1971 MP 195;
Harnek Singh v. Charanjit Singh & Ors. (2005) 8 SCC
383 : [2005] 4 Suppl. SCR 223 - referred to.
5. Section 10A of the 1959 Act and Section 9A of the 1961
Act read with Articles 243-K and 243-O, are pari materia with
Article 324 of the Constitution of India. The remedy of an
aggrieved person accepting or rejecting nomination of a candidate
is by way of an election petition in view of the bar created under
Section 15A of the 1959 Act. The said Act is a complete code
providing machinery for redressal to the grievances pertaining
to election as contained in Section 15 of the 1959 Act. The High
Court though exercises extraordinary jurisdiction under Article
226 of the Constitution of India but such jurisdiction is
discretionary in nature and may not be exercised in view of the
fact that an efficacious alternative remedy is available and more
so exercise restraint in terms of Article 243-O of the Constitution
of India. Once alternate machinery is provided by the statute,
the recourse to writ jurisdiction is not an appropriate remedy. It
is a prudent discretion to be exercised by the High Court not to
interfere in the election matters, especially after declaration of
the results of the elections but relegate the parties to the remedy
contemplated by the statute. In view of the above, the writ petition
should not have been entertained by the High Court. However,
the order of the High Court that the appellant has not furnished
the election expenses incurred on the date of election does not
warrant any interference. [Para 43][905-A-E]
Case Law Reference
[2009] 14 SCR 528
relied on
Para 10
(1976) 2 SCC 455
distinguished
Para 14
[1999] 3 SCR 977
distinguished
Para 15
[2001] 3 SCR 1146
distinguished
Para 16
[2012] 3 SCR 775
distinguished
Para 17
(2017) 2 SCC 528
relied on
Para 19
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[2010] 13 SCR 820
held inapplicable
Para 32
[1952] SCR 218
referred to
Para 37
[1978] 2 SCR 272
referred to
Para 40
[1988] 2 SCR 759
referred to
Para 41
[2005] 4 Suppl. SCR 223
referred to
Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1622
of 2020.
From the Judgment and Order dated 10.12.2018 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Writ Petition (C) No.
13642 of 2018.
With
Civil Appeal Nos. 1623-1625, 1626 of 2020.
Ms. Anitha Shenoy, Sr. Adv., Sudhanshu S. Choudhari, Yogesh
Kolte, Mahesh P. Shinde, Shakul R. Ghatole, Ms. Rashmi Nandakumar,
Ms. Ayushma Awasthi, Shankar Narayanan, M. Y. Deshmukh,
Ms. Manjeet Kirpal, Sandeep Sudhakar Deshmukh, Vasim Siddiqui,
Dr. Ravindra Chingale, Sachin Patil, Vijay Kumar, Ms. Bharti Tyagi,
R.C. Sharma, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
Civil Appeal @ SLP(C) No. 16837 of 2019
1. Leave granted.
2. The challenge in the present appeal is to an order dated 10th
December, 2018 passed by the learned Single Bench of the High Court
of Judicature at Bombay dismissing the writ petition filed by the appellant
against an order of disqualification under Section 14B of the Maharashtra
Village Panchayats Act, 19591 on account of non-submission of election
expenses within the period prescribed.
3. The election of Gram Panchayat, Mugat, Taluk Mudkhed,
District Nanded were held on 1st November, 2015. The results were
declared on 4th November, 2015. The appellant was elected as a Member
1 for short, '1959 Act'
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of Village Panchayat. The appellant was required to furnish election
expenses within 30 days in the manner prescribed by the State Election
Commission in terms of Section 14B of the 1959 Act. The appellant
submitted expenses with delay of 15 days. The appellant was served
with a show cause notice on 3rd March, 2016 as to why she should not
be disqualified on account of failure to submit the election expenses.
The appellant submitted her explanation that due to ill-health there was
a delay of 15 days in furnishing of details of expenses and that delay
may be condoned.
4. The Collector as a delegate of the State Election Commission
passed an order dated 9th August, 2018 disqualifying the appellant for a
period of five years to be a member of Gram Panchayat only for the
reason that the appellant has not submitted election expenses within
time.
5. The appeal against such order was dismissed on 19th November,
2018 by the Additional Divisional Commissioner, Aurangabad for the
reason that the medical certificate is not issued by the Competent
Authority. The said order was challenged before the Writ Court wherein
the High Court held as under:
"5. The learned counsel for the petitioner has tendered a copy of
medical certificate on which petitioner had relied upon. The same
is taken on record and marked "X" for identification. This document
has no particulars whatsoever, such as name, diagnosis, date and
reference number etc. There is nothing mentioned. This certificate
issued by a private hospital bears only a stamp of the doctor. It is
stated that the petitioner was suffering from hypertension, diabetes
and was advised bed rest. This document, on the face of it, cannot
be relied upon. If the authorities have not accepted such a
document, there is no error in the view taken by them."
6. Learned counsel for the appellant vehemently argued that the
appellant was advised bed rest on account of hypertension and diabetes,
which fact caused unintended delay of furnishing of election expenses.
It is also argued that the appellant is duly elected member of Panchayat
and that an order of disqualification can be passed if the candidate fails
to show any good reason or justification for the failure to submit accounts.
It is also submitted that there is no finding that the accounts furnished,
though with delay of fifteen days, are not proper or not in accordance
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with applicable rules or instructions. The order of disqualifying her for
five years, in fact, jeopardises her right to contest election until 8th August,
2023 (i.e. from the date of the order passed on 9th August, 2018).
7. It is argued that since the appellant is a duly elected
representative of Village Mugat and has been elected in a democratic
process, the disqualification for a period of five years without taking into
consideration the extent of default and the consequences of
disqualification renders the order of disqualification as wholly
disproportionate to the deficiency alleged against the appellant. It is argued
that an order of disqualification should have been passed without delay
and not nearly after 3 years of the elections. It is further argued that
disqualification for a period of five years is the maximum period of
disqualification whereas in terms of sub-section (2) of Section 14B of
the 1959 Act, the disqualification can be for a period less than five years.
Therefore, the authority was expected to consider the nature and extent
of default and consequent period of disqualification, which should be
commensurate with the default found by such authority. The relevant
Section 14B of the 1959 Act reads thus:
"14B. Disqualification by State Election Commission. -
(1) If the State Election Commission is satisfied that a person, -
(a) has failed to lodge an account of election expenses within
the time and in the manner required by the State Election
Commission, and
(b) has no good reason or justification for such failure, the
State Election Commission may, by an order published in the
Official Gazette, declare him to be disqualified and such person
shall be disqualified for being a member of panchayat or for
contesting an election for being a member for a period of five
years from the date of this order.
(2) The State Election Commission may, for reasons to be
recorded, remove any disqualification under sub-section (1) or
reduce the period of any such disqualification."
8. A bare perusal of Section 14B of the 1959 Act shows that the
State Election Commission is to be satisfied as to whether a person has
no good reason or justification for the failure to furnish account of election
expenses. Secondly, in terms of sub-section (2), for the reasons to be
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recorded, the disqualification under sub-section (1) can be removed or
the period of disqualification can be reduced.
9. The Collector passed an order on 9th August, 2018 not accepting
the explanation for the delayed submission of the election expenses. In
appeal, learned Additional Divisional Commissioner found that the medical
certificate is not issued by the Competent Authority and the matter has
been verified by the Collector. The appellant has not submitted the election
expenses within stipulated time, therefore, there is no error in the order
passed by the Collector. The High Court in the writ petition found that
the medical certificate has no particulars whatsoever such as name,
diagnosis, date and reference number etc. The certificate is issued by a
private hospital and bears only a stamp of doctor. Such document was
not accepted as reasonable explanation for not submitting the election
expenses within time. We find that the explanation in delayed submission
of election expenses has not been accepted. Therefore, we do not find
any reason to take a different view than the view affirmed by the High
Court in the writ petition filed by the appellant.
10. However, the question which arises is that whether delay of
15 days necessarily follows the disqualification for a period of five years.
Learned counsel for the appellant submitted that the order of
disqualification was passed by the Collector approximately 3 years after
the election and there were only two dates of hearing for more than two
years apart. Therefore, inordinate delay in pronouncing the disqualification
order on the part of the Collector severely prejudices the appellant as
the period of disqualification starts from the date of the order. However,
the learned counsel for the respondents relies upon judgment of this
Court reported as Union of India & Ors. v. A.K. Pandey2 to contend
that the mandate of Section 14B of the 1959 Act is disqualification and
the word 'may' have to be read as 'shall'.
11. We do not find any merit in the argument that Section 14B of
the 1959 Act is mandatory. Sub-section (1) of Section 14B of the said
Act empowers the State Election Commission to pass an order of
disqualification of a candidate, if the candidate fails to lodge account of
election expenses for lack of good reason or without any justification.
Such satisfaction is required to be recorded by the Election Commission.
The disqualification for a period of five years is not necessary
consequence of merely not filing account of election expenses. Still
2 (2009) 10 SCC 552
LAXMIBAI v. THE COLLECTOR, NANDED & ORS.
[HEMANT GUPTA, J.]
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further, subsection (2) empowers the State Election Commission for
reasons to be recorded, remove any disqualification under sub-section
(1) or reduce the period of any such disqualification. Since authority is
vested with power to reduce the period of disqualification, therefore,
makes the provision directory.
12. This Court in A.K. Pandey held that the prohibitive or negative
words are ordinarily indicative of mandatory nature of the provision
although said fact alone is not conclusive. This Court held as under:-
" 15. The principle seems to be fairly well settled that The Court
has to examine carefully the purpose of such provision and the
consequences that may follow from non-observance thereof. If
the context does not show nor demands otherwise, the text of a
statutory provision couched in a negative form ordinarily has to
be read in the form of command. When the word "shall" is
followed by prohibitive or negative words, the legislative intention
of making the provision absolute, peremptory and imperative
becomes loud and clear and ordinarily has to be inferred as such.
..................."
13. In the present case, there is no prohibitive or negative
expressions used in Section 14B of the 1959 Act, as it empowers the
Election Commission to pass a just order of disqualification. Such provision
cannot be treated to be mandatory period of five years in view of plain
language of the Statute.
14. It is urged by learned counsel for the appellant that the
disqualification is disproportionate to the default committed by the
appellant. In a judgment reported as D. Venkata Reddy v. R. Sultan &
Ors.3, it was held that the election is a politically sacred public act, not of
one person or of one official, but of the collective will of the whole
constituency. The challenge in the said appeal was to an election on the
allegation of corrupt practices. This Court held that the valuable verdict
of the people at the polls must be given due respect and should not be
disregarded on vague, indefinite, frivolous or fanciful allegations. The
onus lies heavily on the election petitioner to make out a strong case for
setting aside an election. The election results cannot be lightly brushed
aside in election disputes. At the same time, it is necessary to protect the
purity and sobriety of the elections by ensuring that the candidates do
3 (1976) 2 SCC 455
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not secure the valuable votes of the people by undue influence, fraud,
communal propaganda, bribery or other corrupt practices as laid down
in the Act. The Court held as under:
"3. Mr P. Bassi Reddy learned Counsel for the appellant has
assailed before us the findings of the High Court on Issues 7, 26
and 27 as these were the only issues which affected the appellant.
Mr B. Shiv Sankar, learned Counsel for the contesting respondent
has endeavoured to support the judgment of the High Court by
submitting that the findings arrived at by the High Court were
based on a correct and proper appreciation of the evidence and
the facts and circumstances of the record. In a democracy such
as ours, the purity and sanctity of elections, the sacrosanct and
sacred nature of the electoral process must be preserved and
maintained. The valuable verdict of the people at the polls must
be given due respect and candour and should not be disregarded
or set at naught on vague, indefinite, frivolous or fanciful allegations
or on evidence which is of a shaky or prevaricating character. It
is well settled that the onus lies heavily on the election petitioner
to make out a strong case for setting aside an election. In our
country election is a fairly costly and expensive venture and the
Representation of the People Act has provided sufficient
safeguards to make the elections fair and free. In these
circumstances, therefore, election results cannot be lightly brushed
aside in election disputes. At the same time it is necessary to
protect the purity and sobriety of the elections by ensuring that
the candidates do not secure the valuable votes of the people by
undue influence, fraud, communal propaganda, bribery or other
corrupt practices as laid down in the Act."
15. This Court in a judgment reported as State of Punjab v. Baldev
Singh4 held that issue of removal of an elected office bearer has serious
repercussion. It implicitly makes it imperative and obligatory on the part
of the authority to have strict adherence to the statutory provisions. It
was held that severer the punishment, greater care has to be taken to
see that all the safeguards provided in a statute are scrupulously followed.
16. In Tarlochan Dev Sharma v. State of Punjab & Ors.5, this
Court has held that holding and enjoying an office, discharging related
4 (1999) 6 SCC 172
5 (2001) 6 SCC 260
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duties is a valuable statutory right of not only the returned candidate but
also his constituency or electoral college. Therefore, the procedure
prescribed must be strictly adhered to and unless a clear case is made
out, there cannot be any justification for his removal.
17. In Ravi Yashwant Bhoir v. District Collector, Raigad &
Ors.6, this Court held that an elected official cannot be permitted to be
removed unceremoniously without following the procedure prescribed
by law. Where the statutory provision has very serious repercussions, it
implicitly makes it imperative and obligatory on the part of the authority
to have strict adherence to the statutory provisions. It was held as under:
"35. The elected official is accountable to its electorate because
he is being elected by a large number of voters. His removal has
serious repercussions as he is removed from the post and declared
disqualified to contest the elections for a further stipulated period,
but it also takes away the right of the people of his constituency to
be represented by him. Undoubtedly, the right to hold such a post
is statutory and no person can claim any absolute or vested right
to the post, but he cannot be removed without strictly adhering to
the provisions provided by the legislature for his removal (vide
Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691 : AIR 1982 SC
983] , Mohan Lal Tripathi v. District Magistrate, Rae Bareily
[(1992) 4 SCC 80 : AIR 1993 SC 2042] and Ram Beti v. District
Panchayat Raj Adhikari [(1998) 1 SCC 680 : AIR 1998 SC
1222] ).
36. In view of the above, the law on the issue stands crystallised
to the effect that an elected member can be removed in exceptional
circumstances giving strict adherence to the statutory provisions
and holding the enquiry, meeting the requirement of principles of
natural justice and giving an incumbent an opportunity to defend
himself, for the reason that removal of an elected person casts
stigma upon him and takes away his valuable statutory right. Not
only the elected office-bearer but his constituency/electoral college
is also deprived of representation by the person of their choice.
37. A duly elected person is entitled to hold office for the term for
which he has been elected and he can be removed only on a
proved misconduct or any other procedure established under law
6 (2012) 4 SCC 407
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like "no confidence motion", etc. The elected official is accountable
to its electorate as he has been elected by a large number of
voters and it would have serious repercussions when he is removed
from the office and further declared disqualified to contest the
election for a further stipulated period."
18. The judgments relate to the procedure to be followed in election
petition and proof of allegation but such principles are to be followed in
the case of inflicting punishment of disqualification, which has far serious
implication almost similar to indulging in corrupt practices in an election.
The purity and transparency in election process does not give unbridled
and arbitrary power to the Election Commission to pass any whimsical
order without examining the nature of default. The extent of period of
disqualification has to be in proportion to the default. The Election
Commission has to keep in mind that by such process, an election of
duly elected candidate representing collective will of the voters of the
constituency is being set at naught.
19. In a judgment reported as Chief Executive Officer, Krishna
District Co-op. Central Bank Ltd. v. K. Hanumantha Rao7, this Court
held that the limited power of judicial review to interfere with the penalty
is based on the doctrine of proportionality which is a concept of judicial
review. If the punishment is so disproportionate that it shocks the judicial
conscience, the court would interfere. The relevant extract reads as
under:
"7.2 Even otherwise, the aforesaid reason could not be a valid
reason for interfering with the punishment imposed. It is trite that
Courts, while exercising their power of judicial review over such
matters, do not sit as the appellate authority. Decision qua the
nature and quantum is the prerogative of the disciplinary authority.
It is not the function of the High Court to decide the same. It is
only in exceptional circumstances, where it is found that the
punishment/penalty awarded by the disciplinary authority/employer
is wholly disproportionate, that too to an extent that it shakes the
conscience of the Court, that the Court steps in and interferes.
7.2.1 No doubt, the award of punishment, which is grossly in
excess to the allegations, cannot claim immunity and remains open
for interference under limited scope for judicial review. This limited
7 (2017) 2 SCC 528
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power of judicial review to interfere with the penalty is based on
the doctrine of proportionality which is a well-recognised concept
of judicial review in our jurisprudence. The punishment should
appear to be so disproportionate that it shocks the judicial
conscience. [See State of Jharkhand v. Kamal Prasad, (2014)
7 SCC 223]. It would also be apt to extract the following
observations in this behalf from the judgment of this Court in
Kendriya Vidyalaya Sangthan v. J. Hussain, (2013) 10 SCC
106: (SCC pp. 110-12, paras 8-10)
"8. The order of the appellate authority while having a relook
at the case would, obviously, examine as to whether the
punishment imposed by the disciplinary authority is reasonable
or not. If the appellate authority is of the opinion that the case
warrants lesser penalty, it can reduce the penalty so imposed
by the disciplinary authority. Such a power which vests with
the appellate authority departmentally is ordinarily not available
to the Court or a tribunal. The Court while undertaking judicial
review of the matter is not supposed to substitute its own opinion
on reappraisal of facts. (See UT of Dadra and Nagar Haveli
v. Gulabhia M. Lad, (2010) 5 SCC 775). In exercise of power
of judicial review, however, the Court can interfere with the
punishment imposed when it is found to be totally irrational or
is outrageous in defiance of logic. This limited scope of judicial
review is permissible and interference is available only when
the punishment is shockingly disproportionate, suggesting lack
of good faith. Otherwise, merely because in the opinion of the
Court lesser punishment would have been more appropriate,
cannot be a ground to interfere with the discretion of the
departmental authorities.
xx
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10. An imprimatur to the aforesaid principle was accorded by
this Court as well in Ranjit Thakur v. Union of India, (1987)
4 SCC 611. Speaking for the Court, Venkatachaliah, J. (as he
then was) emphasising that "all powers have legal limits"
invoked the aforesaid doctrine in the following words : (SCC
p. 620, para 25)
'25. ... The question of the choice and quantum of
punishment is within the jurisdiction and discretion of the
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Court Martial. But the sentence has to suit the offence and
the offender. It should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence as to shock
the conscience and amount in itself to conclusive evidence
of bias. The doctrine of proportionality, as part of the concept
of judicial review, would ensure that even on an aspect
which is, otherwise, within the exclusive province of the
Court Martial, if the decision of the Court even as to sentence
is an outrageous defiance of logic, then the sentence would
not be immune from correction. Irrationality and perversity
are recognised grounds of judicial review."
20. The disqualification of a candidate for five years passed under
Section 14B of the 1959 Act leads to disqualification for future election
as well. Though, Section 14B of the 1959 Act empowers the Commission
to disqualify a candidate for a period not exceeding five years from the
date of the order, but to pass an order of disqualification for five years,
which may disqualify him to contest the next elections as well requires
to be supported by cogent reasons and not merely on the fact of not
furnishing of election expenses. We find that the order of disqualification
for a period of five years is without taking into consideration the extent
of default committed by the appellant and that the will of people is being
interfered with in the wholly perfunctory way. We find that such
mechanical exercise of power without any adequate reasons, though
required to be recorded, renders the order of disqualification for a period
of five years as illegal and untenable. It is abdication of power which is
coupled with a duty to impose just period of disqualification. Therefore,
though the appellant could be disqualified for a period upto five years,
but we find that such period of disqualification must be supported by
tangible reasons lest it would border on being disproportionate.
21. Consequently, the order dated 9th August 2018 passed by the
Collector and subsequent orders in appeal and in the writ petition are set
aside in part to the extent of prescribing disqualification for a period of
five years and the matter is remitted to the Collector to take into
consideration the period of delay/default, the purport for which the election
expenses are sought to be furnished and that the order of disqualification
operates from the date of the order including delay in passing the order
of disqualification. The Collector shall pass the order afresh in respect
of period of disqualification in accordance with law preferably within a
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period of one month from the date of receipt of a copy of this judgment.
The period of disqualification, if any, will be operative from the date of
the order passed earlier by the Collector on 9th August, 2018 and any
elections held as a consequence of the order of disqualification will abide
the final order to be passed by the Collector.
Civil Appeals @ SLP(C) Nos. 20814-20816 of 2019
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Civil Appeal @ SLP(C) ... Diary No. 40018 of 2019
22. Delay condoned. Leave granted.
23. The present appeals arise out of a common order dated
24th July, 2019 passed by the learned Single Bench of the High Court of
Judicature at Bombay whereby the writ petition filed by the appellant
Gulabrao Ananda Patil was dismissed and writ petitions filed by Ritesh
Suresh Patil and Pradip Nimba Patil were partly allowed.
24. The elections of Panchayat Samiti, Village Mukti, Taluk and
District Dhule, Maharashtra were held on 1st December, 2013. The
appellant Gulabrao Ananda Patil contested the said elections. The results
were declared on 2nd December, 2013 and the appellant Gulabrao Ananda
Patil was not elected. The appellant was required to furnish election
expenses within 30 days in the manner prescribed by the State Election
Commission in terms of Section 15B of the Maharashtra Zilla Parishads
and Panchayat Samitis Act, 19618. Since the appellant did not submit the
account of election expenses within stipulated period, he was served
with a show-cause notice on 21st July, 2014 to explain as to why he
should not be disqualified for next five years on account of his failure to
submit the account of election expenses. The appellant did not submit
any reply within the prescribed time i.e. within seven days but on 28th
August, 2014, he submitted his explanation that due to ill-health, he could
not furnish the details of expenses. The Collector vide order dated 3rd
November, 2014 disqualified the appellant for contesting elections for a
period of five years. An appeal filed by the appellant was dismissed by
the Divisional Commissioner on 18th December, 2017.
25. Meanwhile, the elections of Gram Panchayat, Village Mukti
were notified. The appellant submitted his nomination on 21st September,
2017 for the post of Sarpanch. Such nomination of the appellant was
8 for short, '1961 Act'
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objected by Pradip Nimba Patil (Petitioner in W.P. No. 11929 of 2017
before the High Court) but was rejected by the Returning Officer on
25th September, 2017. The appellant was declared elected to the post of
Sarpanch. The Returning Officer held that the disqualification is applicable
only for the elections of Zilla Parishads and Panchayat Samiti and not
for the elections of Gram Panchayat. The order of the Returning Officer
was challenged before the High Court in Writ Petition No. 11929 of
2017 and in Writ Petition No. 13711 of 2017.
26. Writ Petition No.