WRIT PETITION NO.909/2020

3rd March 2020

Petitioner Counsel: Mr. M.P. Kariya
Respondent Counsel: Mrs. M.A. Barabde
Act Name: Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965

Section :
Section 9A Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965

Cases Cited :
Para 8: Anant H. Ulahalkar Vs. Chief Election Commissioner, [2017 (1) Mh.L.J.FB431]
Para 8: Shankar S/o Raghunath Devre (Patil) Vs. State of Maharashtra and others, [(2019) 3 SCC 220]

JUDGEMENT

1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, the petition is taken up for final hearing at the admission stage.

2. The petitioner challenges order passed by Collector, Akola thereby disqualifying her as a member of village Panchayat Sarkinhi, Tah. Barshi Takli, District Akola for non submission of caste validity certificate within stipulated time which was confirmed by the Commissioner in appeal.

3. The petitioner contested election of Village Sarkinhi, Tah. Barshi Takli, Distt. Akola held on 09.10.2017 from Other Backward Class (Woman) Category. The petitioner submitted documents of Other Backward Class Category which were issued in her maiden name i.e. Ku Malta Gopal Rathod. The petitioner got elected on the post of member on 09.10.2017. However, for non submission of caste validity certificate within stipulated time, the Collector, Akola disqualified the petitioner from the post of membership vide order dated 26.07.2019.

4. The petitioner challenged the decision of the Collector by approaching respondent no.1-Divisional Commissioner, who initially granted stay to the disqualification. However, vide impugned order dated 10.11.2019, the appeal of the petitioner was dismissed on the ground that the petitioner failed to submit documents showing that Ku. Malta Gopal Rathod and Sau. Malta Bramhadas Chavan is one and the same person.

5. The learned counsel for the petitioner submits that the petitioner has submitted validity certificate well within time and the issue as to whether the electoral candidates are different than those candidates who were known by their marital name, was never a subject matter of challenge before the Collector as well as before the Divisional Commissioner. He further submits that the petitioner had tendered affidavit along with nomination form declaring that her maiden name was different from her marital name and after marriage, she was known by the name which is mentioned in the cause title of this petition.

6. On the other hand, the learned A.G.P. has strenuously opposed the petition and submits that no interference is called for in the order passed by the District Collector and Divisional Commissioner. It is submitted that the petitioner has failed to establish before the authorities that she was earlier known by her maiden name and after marriage she is known by her marital name. The petitioner has failed to establish that these two names are not of two different persons but they are of the petitioner.

7. There is no dispute that the petitioner received validity certificate dated 06.12.2018 issued by the Scrutiny Committee and she submitted the same to the Tahsildar on 31.12.2018 and to the Collector on 01.01.2019. Thus the validity certificate was submitted by petitioner within prescribed time. The Collector issued disqualification order in spite of submission of caste validity certificate of the petitioner. Learned counsel for the petitioner was right in pointing out the Annexure in the form of affidavit of the petitioner submitted with the nomination form in submitting that the issue that the maiden name of the petitioner was Ku. Malta Gopal Rathod and after marriage the name became Sau. Malta Bramhadas Chavan was never subject matter of challenge before the Collector, so also, before the Divisional Commissioner. In view of the submission on affidavit by the petitioner along with the nomination form declaring that the maiden name of the petitioner was different from her name after marriage, the Commissioner ought to have allowed the appeal filed by the petitioner.

8. The learned counsel for the petitioner rightly placed reliance in judgment rendered by this Court (Coram: Ravindra V. Ghuge, J.) in Writ Petition No.381/2020 and connected matters, wherein this Court held as under:
“8] I find that the law as regards disqualification on the ground of failure in submitting the caste/ tribe certificate within 6 months from the date of elections, was sustained in the judgment delivered by the learned Division Bench of this Court in the matter of Anant H. Ulahalkar Vs. Chief Election Commissioner [2017 (1) Mh.L.J.FB431]. Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 was at issue. Section 10-1A of the Maharashtra Village Panchayats Act is identical to Section 9A which was at issue in Anant H. Ulahalkar Vs. Chief Election Commissioner (supra) the matter was carried to the Hon’ble Apex Court and in the judgment delivered in the case of Shankar S/o Raghunath Devre (Patil) V/s. State of Maharashtra and others [(2019) 3 SCC 220], it was held by the Hon’ble Apex Court that Section 9A has a mandatory force and, as such, those provisions under various Acts which require submission of caste / tribe validity certificates, will have to be mandatorily complied with.
9] The State of Maharashtra introduced an amendment in these Acts and enlarged the period of 6 months to 12 months for submissions of such validity certificates. Subsequently, the State of Maharashtra introduced the Ordinance XXI dated 11.10.2018 by which permission was granted to candidates whose election occurred after 31.03.2016 and enabled them to submit their validity certificates. Maharashtra Ordinance No.II dated 14.02.2019 was then introduced extending the period up to 14.05.2019.
10] Considering the above, it is obvious that when the proceedings were conducted by the District Collector in which the order disqualifying these petitioners was passed on 14.08.2019, these petitioners were protected as the period was extended from time to time by the State Government. When the Divisional Commissioner, dealt with the matters on 21.12.2019, there were clearly protection in view of the Ordinance dated 11.10.2019.”

9. In the present petition, petitioner has been elected by carrying her marital name and petitioner had tendered affidavit along with her nomination form declaring her identity in her maiden name as well as in her marital name. In this backdrop, an elected candidate should not be casually ousted on the basis of conjectures and surmises. If the Divisional Commissioner had any doubt about the maiden name and marital name of petitioner, he should have sought further details and ought to have considered the nomination form of the petitioner accompanied with the affidavit of the petitioner.

10. In view of the aforesaid observations, the impugned order of disqualification passed by Collector and order passed by the Commissioner in the appeal are unsustainable and same are liable to be quashed and set aside. The Writ Petition deserves to be allowed and same is allowed in terms of prayer clause- (a).

Rule is made absolute in above terms with no order as to costs.