Writ Petition No. 1237 of 2012

29th July, 2013

Petitioner Counsel: Shri V.D. Salunke
Respondent Counsel: Smt. R.K. Ladda

Cases Cited:
Tulsabai Maroti Shelke Vs. Additional Commissioner Amravati, 2004(2) ALL MR 54=2004 BCI(0) 29 [Para 5,12]
Sau Manisha Sanjay Wasekar Vs. Anil @Bajirao) Balaso Dhavan(Panari), 2010(4) ALL MR 638=Writ Petition No.2805/2010, Dt.10/06/2010 [Para 5,12]
Kishori Shivram Parab and another Vs. Tahsildar Vengurla and others, 2006 (3) Bom. C.R.664 [Para 5]
N.C. Dalwadi Vs. State of Gujrat, AIR 1987 SC 1933 [Para 5]
CST Vs. Union Medical Agency, (1981)1 SCC 51 [Para 11]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. With consent of the learned Counsel the Petition is taken up for final hearing.

2. The Petition impugns an order dated 28.12.2011, passed by the Additional Commissioner, Aurangabad, in Appeal, confirming the order dated 01.02.2011, passed by the Additional Collector, Beed. By the impugned order, the Appeal preferred by the Petitioner under section 16(2) of the Bombay Village Panchayat Act (hereinafter referred to as "Panchayat Act"), came to be rejected.

3. The Petitioner was elected as a member of the Village Gram Panchayat, Nitrud from Ward No. 1 on 31.07.2010. Subsequently, he was elected as Sarpanch in a meeting held on 19.08.2010. According to the Petitioner, Respondent No. 1 who is his rival in the village politics,had made an Application on 27.08.2010 to the Additional Collector, Ambajogai under Section 14 read with Section 16 of the Panchayat Act claiming that the Petitioner had contested the election though he had not completed the age of 21 years. It was contended by Respondent No. 1 that the said objection was raised at the time of nomination and scrutiny, but it was not accepted. Therefore, Respondent No. 1 sought a declaration that the Petitioner be disqualified under section 14(1)(a-1) of the Panchayat Act.

4. The Petitioner was noticed and called upon to file his say to the Application. The Petitioner denied that any such objection was raised at the time of nomination and scrutiny, and contended that it was not open for Respondent No. 1 to raise that objection after the election. It was contended by the Petitioner that Additional Collector, Ambajogai has no authority to decide the issue after elections are over and an Election Petition under Section 15 of the Bombay Village Panchayat Act is the remedy. The Additional Collector after hearing the parties, by his order dated 01.02.2011 allowed the Application of Respondent No. 1 holding that the Petitioner was ineligible to contest the election as the Petitioner was less than 21 years of age at the time of filing of the nomination and disqualified the Petitioner under section 16 of the Panchayat Act. The Petitioner preferred the statutory Appeal under section 16(2) of Panchayat Act before the Additional Commissioner. The Petitioner also filed a Stay Application, which came to be rejected. The rejection of Stay Application was subjected to challenge before this Court in Writ Petition No. 4033 of 2010. By order dated 26.08.2011, the Writ Petition was allowed and the order of the Additional Collector was stayed and the Additional Commissioner, Aurangabad was directed to hear and decide the Appeal within a period of four months. The Appeal was thereafter heard by the Additional Commissioner and was dismissed by an order dated 28.12.2011, thereby confirming the order of the Additional Collector, Ambajogai dated 01.02.2011. Hence, this Writ Petition.

5. Learned Counsel on behalf of the Petitioner made the following submissions:

(i) The Petitioner had completed the required age at the time of making the nomination as he had 'attained' the age of 21 years as contemplated under Section 14(1)(a-1) of the Panchayat Act and the Authorities have misinterpreted the said provision.

(ii) No objection was raised against the candidature of the Petitioner at the time of his nomination and scrutiny.

(iii) The proceedings under section 14 read with section 16 of the Panchayat Act after election are not maintainable and the only remedy was to file an Election Petition under section 15 of the Panchayat Act.

The learned Counsel in support of his submissions has relied upon the following judgments:

(a) Tulsabai Maroti Shelke Vs. Additional Commissioner Amravati, 2004 BCI(0) 29 : [2004(2) ALL MR 54], of a learned Single Judge of this Court.

(b) Judgment and Order dated 10.06.2010 of a learned Single Judge of this Court in Writ Petition No. 2805 of 2010 : [2010(4) ALL MR 638], Sau Manisha Sanjay Wasekar Vs. Anil @Bajirao) Balaso Dhavan(Panari).

(c) Kishori Shivram Parab and another Vs. Tahsildar Vengurla and others, 2006 (3) Bom. C.R.664 of a Division Bench of this Court.

(d) N.C. Dalwadi Vs. State of Gujrat AIR 1987 SC 1933.

The Learned Counsel has also invited my attention to the meaning of the word "attain" in (i)Concise Oxford Dictionary,(ii)The Random House Dictionary of the English language,(iii) The Little Modern Dictionary by K.B. Virkar, and (iv) Encyclopaedia Law Lexicon by Justice C.K. Thakkar (Vol.1)

6. Learned AGP on the other hand supported the impugned order.

7. Section 14 of the Panchayat Act deals with disqualification. Section 14(1)(a-1) is relevant for our purposes. It reads as follows:

"14. Disqualification: (1) No person shall be a member of a Panchayat continue as such, who

(a).......

(a-1) has been disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the Maharashtra State.

Provided that, no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years.

(b)..... (emphasis supplied)

8. It is an admitted position that on the date of making the nomination the Petitioner had not completed the age of 21 years and the age of the Petitioner on that date was 20 years 8 months and 19 days. The thrust of the argument of the learned Counsel for the Petitioner is on the term "attained" appearing in the aforesaid proviso to section 14(1)(a-1). Relying upon the meaning of word "attain" in the Dictionaries (supra) and Encyclopaedia (supra), learned Counsel for the Petitioner submitted that the Petitioner is only required to have reached or arrived at the age of 21 years and the Petitioner was not required to have completed the age of 21 years.

9. I am, however, unable to interpret the word "attain" in the manner the learned Counsel wants me to. In my view, the word "attain" in the context of Section 14(1)(a-1) of the Panchayat Act is that the candidate ought to have completed age of 21 years. As a matter of fact, the substantive provision for a person to qualify to be elected is found in Section 13 of the Panchayat Act. It reads as follows:

"13(1) Persons qualified to vote and be elected Every person who is not less than 21 years of age on the last date fixed for making nomination for every general election or bye-election and whose name is in the list of voters shall, unless disqualified under this Act, or any other law for the time being in force, be qualified to vote at the election of a member for the ward to which such list pertains.

(2) Every person whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected for any ward of the village. No person whose name is not entered in the list of voters for such village shall be qualified to be elected for any ward of the village." (emphasis supplied)

10. From the aforesaid provision, it would be clear that only a person who is not less than 21 years of age on the last date fixed for making nomination and whose name figures in the list of voters is entitled to vote in the election and unless his name appears in the voters list he is not qualified to be elected. The expression 'not less than 21 years' would have to be given its natural meaning viz 'completed the age of 21 years'. In other words a person cannot qualify to be elected unless his name is on the voters list and his name cannot be in the voters list unless he is at least 21 years of age. If follows therefore that a person cannot qualify to be elected if he is less than 21 years of age.

11. Sections 13 and 14 of the Panchayat Act, in my view, will have to be read harmoniously to interpret the word "attain" and the only conclusion would be that the expression 'if he has attained the age of 21 years' appearing in the proviso to Section 14(1)(a-1) of the Panchayat Act would mean 'if he is not less than 21 years of age' which expression appears in Section 13(1). If the construction as suggested by the learned Counsel for the Petitioner were to be accepted it would mean that even a new born can be said to have attained the age of one year on his birth! It is pertinent to note that in the dictionary meanings relied upon by the learned Counsel for the Petitioner, the word "attain" is inter-alia also described as 'accomplish' meaning thereby 'to complete'. The maxim 'ex visceribus actus' would be applicable in the instant case, viz. that the Act has to be read as a whole. [See CST Vs. Union Medical Agency, (1981)1 SCC 51 of three learned Judges of the Apex Court].

12. In the case of Tulsabai, [2004(2) ALL MR 54] (supra) relied upon by the learned Counsel for the Petitioner the question before the learned Single Judge as quoted in para No. 4 of the judgment was as follows :

"4. The question is whether the Collector is empowered under section 16 to declare that the vacancy has occurred in a case where it is found that a person who is contesting election as a member for the Gram Panchayat has not completed the age of 21 years."

In that case, it was an admitted position that there was no order of any authority disqualifying the candidate. It is in that context, it was held that the Collector has no power to decide the vacancy under Section 16 in absence of a disqualification order. In the present case, the order impugned is order of disqualification itself, therefore, that decision would have no application to the facts of the present case. The decision in Sau Manisha's, [2010(4) ALL MR 638] case (supra) also nowhere deals with the interpretation of the word "attained" as appearing in the proviso to Section 14(1) (a-1).

13. Even assuming that no objection was raised as regards the age of the Petitioner at the time of nomination or scrutiny would not preclude such objection being raised at a later stage. When Panchayat Act specifically provides vide sections 14 and 16 for disqualification and disability from continuing as a member, I am unable to accept the contention on behalf of the Petitioners that the Election Petition is the only remedy available.

14. In light of the above discussion, I find no merit in the Petition which shall accordingly stand dismissed. Rule is discharged. No order as to costs.

Petition dismissed.