REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1622  OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 16837 OF 2019

LAXMIBAI .....APPELLANT(S)

VERSUS

THE COLLECTOR, NANDED & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NOS. 1623-1625   OF 2020 (ARISING OUT OF SLP (CIVIL) NOS. 20814-20816 OF 2019)

CIVIL APPEAL NO. 1626  OF 2020 (ARISING OUT OF SLP (CIVIL) NO.  4438  OF 2020)

[DIARY NO. 40018 OF 2019]

J U D G M E N T

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

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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  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

1  for short, ‘1959 Act’

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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 with

applicable rules or instructions. The order of disqualifying her for

five years, in fact, jeopardises her right to contest election until 8 th

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

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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

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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.  

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

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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 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.

2  (2009) 10 SCC 552

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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

3  (1976) 2 SCC 455

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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 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.”

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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

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

4  (1999) 6 SCC 172 5  (2001) 6 SCC 260 6  (2012) 4 SCC 407

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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  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

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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 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

7  (2017) 2 SCC 528  

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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 xx xx

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  Court

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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

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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 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

A N D

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

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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

8  for short, ‘1961 Act’

15

notified.  The  appellant  submitted  his  nomination  on  21st

September, 2017 for the post of Sarpanch.  Such nomination of the

appellant was 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. 3846 of 2018 was filed by the appellant Gulabrao

Ananda  Patil  challenging  the  order  dated  18th December,  2017

passed by the Divisional Commissioner confirming the order dated

3rd November, 2014 passed by the Collector to disqualify him for a

period of five years on account of his failure to submit account of

election expenses within the stipulated period.  Writ Petition No.

11929 of  2017  was  filed  by  Pradip  Nimba  Patil  challenging  the

order dated 25th September, 2017 passed by the Returning Officer

whereby the objection raised by him to the nomination of appellant

Gulabrao Ananda Patil to the post of Sarpanch was rejected.   Writ

Petition  No.  13711  of  2017  was  filed  by  Ritesh  Suresh  Patil

(appellant  herein  in  Civil  Appeal  arising  out  of  Special  Leave

Petition Diary No. 40018 of 2019) with a prayer to set aside the

election of appellant Gulabrao Ananda Patil, who has been declared

16

elected as Sarpanch of Village Mukti,  on the ground that on the

date  of  his  nomination,  he was  disqualified from contesting the

said election.  A further prayer is also made by appellant Ritesh

Suresh  Patil  to  declare  him  elected  as  Sarpanch  of  Gram

Panchayat, Village Mukti by setting aside the election of Gulabrao

Ananda Patil.  

27. The  High  Court  dismissed  the  writ  petition  filed  by  Gulabrao

Ananda Patil.   The writ  petitions filed by Pradip Nimba Patil  and

Ritesh Suresh Patil were partly allowed by setting aside the order

passed by the Returning Officer rejecting the objections raised by

him while  the  relief  claimed in  the  writ  petition  filed  by  Ritesh

Suresh Patil to declare him elected as Sarpanch was not granted.

Appellants  Gulabrao Ananda Patil  and Ritesh Suresh Patil  are in

appeal before this Court.

28. The argument of the appellant before the High Court was that the

order  dated  3rd November,  2014  has  been  passed  without

considering the explanation of the appellant regarding his ill-health

and that the order has been passed mechanically.  The High Court

found that admittedly the appellant Gulabrao Ananda Patil has not

submitted any account of election expenses incurred on the date of

voting,  therefore,  there  is  no  error  in  the  order  passed  by  the

Collector  disqualifying the appellant from contesting election for

next five years.  Learned counsel for the appellant submitted that

disqualification of the appellant was on account of non-furnishing

of  expenses  under  the  1961  Act.   The  disqualification  under

17

Section 15B of the 1961 Act was to contest an election for being a

Councillor.   Such disqualification  is  not  applicable  to  contest  an

election  in  respect  of  another  local  body  governed  by separate

statute, the 1959 Act.   

29. It  is  further  submitted  that  the  order  passed  by  the  Returning

Officer confers a cause to an aggrieved person to file an election

petition  under  Section  15  of  the  1959  Act.   Such  order  of

acceptance of nomination papers could not be challenged in a writ

petition in view of Article 243-O of the Constitution of India and in

view of alternate efficacious remedy provided under the 1959 Act.

30. It  is  also submitted that  the disqualification for  a period of  five

years is wholly disproportionate to the default committed by the

appellant of not filing the election expenses incurred on the date of

election.

31. Similar  argument has been examined in  an appeal preferred by

Laxmi Bai.   For the reasons recorded therein,  we find that the

order  of  disqualification  for  a  period of  five years  is  illegal  and

untenable and cannot be sustained.

32. Learned counsel for the appellant referred to a judgment reported

as Commissioner of Central Excise, New Delhi v. Hari Chand

Shri Gopal & Ors.9 to contend that the appellant has substantially

complied  with  the  provisions  of  submitting  election  expenses,

therefore, the order of disqualification is not tenable.  We do not

find any merit in the said argument.  The election expenses are

sought to maintain purity of election and to bring transparency in

9  (2011) 1 SCC 236

18

the process.  The voters must know everything about his candidate

during and post elections.  Therefore, such judgment which deals

with excise duty is not applicable to the facts of the present case.

33. The provisions of Section 15B of the 1961 Act are similar to the

provisions of Section 14B of the 1959 Act.  Section 15B of the 1961

Act reads as under:   

“15B.   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 Councillor or for contesting an election for being a Councillor 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.”

34. The appellant was elected as a candidate in respect of election to

Gram Panchayat conducted in terms of 1959 Act.  Section 13 of the

said Act as it existed prior to substitution by Maharashtra Act 54 of

2018, contemplates disqualifications to contest for election.   The

relevant provision reads as under:

“13. Persons qualified to vote and be elected (1) Every person  who is not less than 21 years of age on

19

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…..”

35. The High Court followed its earlier judgment reported as  Gokul

Chandanmal Sangvi  v. State of Maharashtra and Others10,

holding that the disqualification incurred by a candidate will entail

disqualification to contest an election under 1959 Act in terms of

Section  13  of  the  said  Act.   Since  the  appellant  has  been

disqualified  under  the  provisions  of  1961  Act,  therefore,  such

disqualification  is  a  disqualification  for  the  purposes  of  the

elections under 1959 Act as well.  Therefore, the appellant could

not contest elections for Gram Panchayat having been disqualified

for a period of five years under the 1961 Act.  We see no reason to

disagree with the findings of the High Court in this respect.  

36. The High Court in Gokul Chandanmal Sangvi, while considering

argument  that  the  remedy  of  an  aggrieved  person  accepting

nomination papers of the present appellant is by way of election

petition, held that if there were illegalities in the election, it would

have effect of vitiating the election. The High Court held as under:

“10.  ……..There is a reference in this case about the

10  2018 (4) Mh LJ 911

20

judgment in N. P. Punnuswami vs The Returning Officer AIR 1952 SC 64. In Punnuswami's case, the appellant's nomination was rejected and he challenged the same by a writ of certiorari to quash the order and include his name.  The  High  Court  dismissed  the  petition  on  the ground that it had no jurisdiction to interfere with the order of the Returning Officer. The Apex Court held that, the only remedy provided was by election petition to be presented  after  the  election  was  over  and  even  the High Court had no jurisdiction under Article 226 of the Constitution  of  India  during  the  intermediate  period. However,  if  there  were  illegalities  in  the  election,  it would have effect of vitiating the election.

***       ***         ***

17.  We  find  that,  the  Returning  Officer  has  taken  a stand totally contradictory to the provisions of law while upholding the  nomination of  respondent  No.  5.  Since respondent No. 5 was disqualified but was allowed to contest  the  election,  the  whole  election  stands vitiated.”

37. In  the  judgment  reported  as  N.  P.  Punnuswami  v. The

Returning  Officer11 it  was  held  by  this  Court  that  the  only

remedy provided was by election petition to be presented after

the election was over and even the High Court had no jurisdiction

under Article  226 of  the  Constitution  of  India  during  the

intermediate period.  It  was held that the ground of rejection of

nomination paper cannot be urged in any other manner, at any

other stage and before any other court.  It further held that under

the election law, the rejection of a nomination paper can be used

as  a  ground  to  call  election  in  question  before  the  Authority

prescribed by law in terms of Article 329 of the Constitution of

India. This Court arrived at the following conclusions:  

11  AIR 1952 SC 64

21

“(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has  always  been  recognized  to  be  a  matter  of  first importance that elections should be concluded as early as  possible  according  to  time  schedule  and  all controversial  matters  and  all  disputes  arising  out  of elections should be postponed till after the elections are over,  so  that  the  election  proceedings  may  not  be unduly retarded or protracted.  

(2)  In  conformity  with  this  principle,  the  scheme the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are commit ted while it is in progress and they belong to the category or class which, under the law by which elections  are  governed,  would  have  the  effect  of vitiating the' 'election" and enable the person affected to call it in question, they should be brought up before a special  tribunal  by means of  an election petition and not be made the subject of a dispute before any court while the election is in progress.”

38. 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.   Article  243-O of  the

Constitution of India reads as under:

“243-O. Bar to interference by courts in electoral matters.-  Notwithstanding  anything  in  this Constitution-

(a) the  validity  of  any  law  relating  to  the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243-K, shall  not be called in question in any court;

22

(b) no election to any Panchayats shall be called in question  except  by  an  election  petition  presented  to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.”  

39. 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. Section 15A of the

1959 Act reads thus:-

“15A.  Bar  to  interference  by  Court  in  electoral matters.-No election to any Panchayat shall be called in question  except  in  accordance  with  the  provisions  of Section 15; and no court other than the Judge referred to in that Section shall entertain any dispute in respect of such election.”

40. A Constitution  Bench  in  Mohinder  Singh Gill  & Anr.  v. The

Chief Election Commissioner, New Delhi & Ors.12 examined

the  N.P. Ponnuswami’s case and held that  Article  329 of  the

Constitution  of  India  starts  with  a  non  obstante clause  that

notwithstanding  contained  in  this  Constitution,  no  election  to

either  house  shall  be  called  in  question  except  by  an  election

petition. Therefore, Article 226 of the Constitution of India stands

pushed out where the dispute takes the form of calling in question

an  election,  except  in  special  situations  pointed  out  but  left

12  (1978) 1 SCC 405

23

unexplored in Ponnuswami. It was held that there is a remedy for

every wrong done during the election in progress although it is

postponed to the post-election stage.  The Election Tribunal has

powers to give relief to an aggrieved candidate.

41. In respect of elections to a local body, this Court in a judgment

reported  as  S.  T.  Muthusami  v. K.  Natarajan  &  Ors.13,

approved  Full  Court  Judgment  of  Madhya  Pradesh  High  Court

reported as Malam Singh v. The Collector, Sehore14, wherein it

was held that there is no constitutional bar to the exercise of writ

jurisdiction  in  respect  of  election  to  local  bodies  such  as

Municipalities, Panchayat and the like but it is desirable to resolve

the election dispute speedily through the machinery of election

petitions.   In  Malam Singh’s case,  the  Madhya  Pradesh  High

Court held as under:  

“7. The Act, therefore, furnishes a complete remedy for the  particular  breach  complained  of.  The  Legislature prescribed the manner in which and the stage at which the rejection of a nomination paper can be raised as a ground to call the election in question. We think it fol- lows by necessary implication from the language of Sec- tion 357(1) that this ground cannot be urged in other manner, at any other stage and before any other Court. If  the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enact- ing a provision like Section 357(1) and in setting up an election tribunal. The question of improper rejection of a nomination paper has, therefore, to be brought up be-

13  (1988) 1 SCC 572 14  AIR 1971 MP 195

24

fore the election tribunal by means of an election peti- tion after the conclusion of the election.

*** *** ***

17. Lastly, their Lordships stated that the law of election in this country does not contemplate that there should be  two  attacks  on  matters  connected  with  election proceedings, in the following passage:—

“In my opinion, to affirm such a position would be  contrary  to  the  scheme  of  ………  the Representation  of  the  People  Act,  which  as  I shall  point  out  later,  seems  to  lie  that  any matter  which  has  the  effect  of  vitiating  an election  should  be  brought  up  only  at  the appropriate  stage  in  an  appropriate  manner before  a  special  tribunal  and  should  not  be brought up at an intermediate stage before any Court.  It  seems to me that under the election law, the only significance, Which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question.”

18. There  is  no  constitutional  bar  to  the  exercise  of writ jurisdiction in respect of elections to Local Bodies such  as,  Municipalities,  Panchayats  and  the  like. However, as it is desirable to resolve election disputes speedily  through  the  machinery  of  election  petitions, the Court in the exercise of its discretion should always decline  to  invoke  its  writ  jurisdiction  in  an  election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal,  Kotah, AIR 1955 SC 425, stated:—

“……  though  no  legislature  can  impose limitations on these constitutional owners it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be.  Therefore,  writ  petitions  should  not  be lightly entertained in this class of case.”

25

42. This  Court again examined the question in  respect of  raising a

dispute relating to  an election  of  a local  body before  the High

Court  by  way  of  a  writ  petition  under  Article  226  of  the

Constitution of India in a judgment reported as Harnek Singh v.

Charanjit Singh & Ors.15.  It was held as under:  

“15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High Court in exercise of its jurisdiction under Ar- ticle 226 of the Constitution of India. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alterna- tive remedy is available therefor. (See Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., 2 (2005) 8 SCC 242: 005 (7) SCALE 290.)

16.  Article 243-O of the Constitution of India man- dates  that  all  election  disputes  must  be  determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic struc- ture of the Constitution, but ordinarily such jurisdiction would  not  be  exercised.  There  may  be  some  cases where a writ petition would be entertained but in this case we are not concerned with the said question.

17. In  C.  Subrahmanyam  Vs.  K.  Ramanjaneyullu and Others : (1998) 8 SCC 703, a three-Judge Bench of this Court observed that a writ petition should not be entertained when the main question which fell for deci- sion before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act.”

43. 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

15  (2005) 8 SCC 383

26

the Constitution of India.  In view of the judgments referred, we

find that 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.

44. Consequently, the order passed by the Collector on 3rd November,

2014 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

27

take into consideration the nature of 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 period

of one month from the date of receipt of 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 3rd November,

2014 and that any elections held as a consequence of the order of

disqualification  will  abide  the  final  order  to  be  passed  by  the

Collector.    

45. In view of  the above, Civil  Appeals  arising out  of  Special  Leave

Petitions (Civil) Nos. 16837 of 2019 and 20814-20816 of 2019 are

allowed in the abovementioned terms; whereas Civil Appeal arising

out  of  Special  Leave  Petition  (Diary  No.  40018  of  2019)  is

dismissed.

.............................................J. (A.M. KHANWILKAR)

.............................................J. (HEMANT GUPTA)

28

.............................................J. (DINESH MAHESHWARI)

NEW DELHI; February 14, 2020.

29