LAXMIBAI versus THE COLLECTOR, NANDED & ORS.

[2020] 2 S.C.R. 880

[2020] 2 S.C.R.

LAXMIBAI

THE COLLECTOR, NANDED & ORS.

(Civil Appeal No. 1622 of 2020)

FEBRUARY 14, 2020

[A. M. KHANWILKAR, HEMANT GUPTA ANDDINESH MAHESHWARI, JJ.]

Maharashtra Village Panchayats Act, 1959: s.14B – ElectionCof Gram Panchayat – Appellant elected as member of villagePanchayat – Disqualification of appellant on account of non-submission of election expenses within the period prescribed – Held:A perusal of s.14B shows that the State Election Commission is tobe satisfied as to whether person has no good reason orjustification for the failure to furnish account of election expensesD– Secondly in terms of sub-section (2) for the reasons to be recorded,the disqualification under sub-section (1) can be removed or theperiod of disqualification can be reduced – In the instant case,explanation of appellant that he was advised bed rest on accountof hypertension and diabetes which caused unintended delay inEfurnishing election expenses was not accepted – Collector passedorder disqualifying the appellant for period of five years to bemember of Gram Panchayat – Appeal dismissed for the reason thatthe medical certificate was not issued by the Competent Authority –High Court while disposing of writ petition held that copy of medicalFcertificate tendered by the appellant had no particulars such asname, diagnosis, date and reference number and the said certificatewas issued by the private hospital bearing only stamp of doctorand the said document cannot be relied upon and if the authoritiesdid not accept it, there was no error in the said view – There is noreason to take different view than the view affirmed by the HighGCourt.

Maharashtra Village Panchayats Act, 1959: s.14B – Plea ofappellant was that there was delay of 15 days in submitting theelection expenses and, therefore, disqualification for period of

five years was disproportionate to the default committed by her –Held: s.14B empowers the Election Commission to pass just orderof disqualification – The extent of period of disqualification has tobe in proportion to the default – In the instant case, the order ofdisqualification for period of five years was without taking intoconsideration the extent of default committed by the appellant –Such mechanical exercise of power without any adequate reasons,rendered the order of disqualification for period of five years asillegal and untenable – Consequently, the order passed by theCollector and subsequent orders in appeal and in the writ petitionare set aside in part to the extent of prescribing disqualification fora period of five years – Matter remitted to the Collector to take intoconsideration the period of delay/default, the purport for whichthe election expenses are sought to be furnished and that the orderof disqualification operates from the date of the order includingdelay in passing the order of disqualification – Election laws.

Maharashtra Village Panchayats Act, 1959: s.14B – Whetherprovision of s.14B, mandatory or directory – Held: In s.14B, thereis no prohibitive or negative expressions used as it empowers theElection Commission to pass just order of disqualification – Sub-section (1) of s.14B empowers the State Election Commission to passan order of disqualification of candidate, if the candidate fails tolodge account of election expenses for lack of good reason or withoutany justification – Such satisfaction is required to be recorded bythe Election Commission – Since authority is vested with power toreduce the period of disqualification, therefore, makes the provisiondirectory.Maharashatra Zilla Parishads and Panchayat Samitis Act,1961: s.15B – Elections of Panchayat Samiti – Disqualification ofappellant for contesting elections for the period of five years onaccount of non-submission of election expenses within periodprescribed – Meanwhile, elections of Gram Panchayat were notifiedand appellant submitted his nomination for the post of Sarpanch –Objection against it was rejected by the Returning Officer andappellant was duly elected to the post of Sarpanch – ReturningOfficer held that disqualification was applicable only for the

Aelections of Zilla Parishads and Panchayat Samitis and not forelections of Gram Panchayat – Order of Returning Officer rejectingobjection challenged before High Court – Writ petition also filedby appellant challenging disqualification order passed by Collector– High Court dismissed writ petition of the appellant while writBpetition filed by objector was partly allowed by setting aside theorder passed by Returning officer rejecting the objections raisedby him – On appeal, held: Art.243-O of the Constitution of Indiaprovides that no election to any panchayats shall be called inquestion except by an election petition presented to such authorityand in such manner as provided for by or under any law madeCunder the legislature of the State – The dispute in these appeals didnot pertain to election to either House of the Parliament but to alocal body – The constitutional bar is contained in Art.243-O of theConstitution of India in furtherance of which s.15A was inserted inthe year 1994 – s.10A of the 1959 Act and s.9A of the 1961 ActDread with Arts.243-K and 243-O, are pari materia with Art.324 ofthe Constitution of India – The remedy of an aggrieved personaccepting or rejecting nomination of candidate is by way of anelection petition in view of the bar created under s.15A of the 1959Act – The said Act is complete Code providing machinery forredressal to the grievances pertaining to election as contained inEs.15 of the 1959 Act – High Court though exercises extraordinaryjurisdiction under Art.226of the Constitution of India but suchjurisdiction is discretionary in nature and may not be exercised inview of the fact that an efficacious alternative remedy is availableand more so exercise restraint in terms of Art.243-O of theFConstitution of India – Once alternate machinery is provided bythe statute, the recourse to writ jurisdiction is not an appropriateremedy – It is prudent discretion to be exercised by the High Courtnot to interfere in the election matters, especially after declarationof the results of the elections but relegate the parties to the remedyGcontemplated by the statute – In view of this, writ petition shouldnot have been entertained by the High Court – However, the orderof the High Court that the appellant has not furnished the electionexpenses incurred on the date of election did not warrant anyinterference – Constitution of India – Arts.243K, 243O and 324 –Election-Laws.H

Interpretation of Statutes: Whether provision is mandatoryor directory – Prohibitive or negative words are ordinarily indicativeof mandatory nature of the provision – Maharashtra VillagePanchayats Act, 1959 – s.14B.

Disposing of the appeals, the Court

HELD: 1. The purity and transparency in election processdoes not give unbridled and arbitrary power to the ElectionCommission to pass any whimsical order without examining thenature of default. The extent of period of disqualification has tobe in proportion to the default. The Election Commission has tokeep in mind that by such process, an election of duly electedcandidate representing collective will of the voters of theconstituency is being set at naught. [Para 18][893-B-D]

Union of India & Ors. v. A.K. Pandey (2009) 10 SCC552 : [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 SCC455; State of Punjab v. Baldev Singh (1999) 6 SCC172 : [1999] 3 SCR 977; Tarlochan Dev Sharma v.State of Punjab & Ors. (2001) 6 SCC 260 : [2001] 3SCR 1146; Ravi Yashwant Bhoir v. District Collector,Raigad & Ors. (2012) 4 SCC 407 : [2012] 3 SCR 775– Distinguished.

2. The disqualification of candidate for five years passedunder Section 14B of the 1959 Act leads to disqualification forfuture election as well. Though, Section 14B of the 1959 Actempowers the Commission to disqualify candidate for periodnot exceeding five years from the date of the order, but to passan order of disqualification for five years, which may disqualifyhim to contest the next elections as well requires to be supportedby cogent reasons and not merely on the fact of not furnishing ofelection expenses. The order of disqualification for period offive years is without taking into consideration the extent of defaultcommitted by the appellant and that the will of people is beinginterfered with in the wholly perfunctory way. Such mechanical

Aexercise of power without any adequate reasons, though requiredto be recorded, renders the order of disqualification for periodof five years as illegal and untenable. It is abdication of powerwhich is coupled with duty to impose just period ofdisqualification. Therefore, though the appellant could bedisqualified for period upto five years, but such period ofBdisqualification must be supported by tangible reasons lest itwould border on being disproportionate. [Para 20][895-C-F]

3. The Collector shall pass the order afresh in respect ofperiod of disqualification in accordance with law preferably withina period of one month from the date of receipt of copy of thisCjudgment. The period of disqualification, if any, will be operativefrom the date of the order passed earlier by the Collector on9[th] August, 2018 and any elections held as consequence of theorder of disqualification will abide the final order to be passed bythe Collector. [Para 21] [895-H; 896-A-B]

4. The 73[rd] Constitutional Amendment inserted Part IX inthe Constitution of India. Article 243-O of the Constitution ofIndia as inserted provides that no election to any panchayats shallbe called in question except by an election petition presented tosuch authority and in such manner as provided for by or underEany law made under the legislature of the State. In terms of suchconstitutional provisions, Section 15A was inserted byMaharashtra Act No. 21 of 1994. The dispute in the presentappeals does not pertain to election to either House of theParliament but to local body. The constitutional bar is containedin Article 243-O of the Constitution of India in furtherance ofFwhich Section 15A was inserted in the year 1994. [Paras 38,39][901-E-F; 902-A-C]

Commissioner of Central Excise, New Delhi v. HariChand Shri Gopal & Ors. (2011) 1 SCC 236 : [2010]13 SCR 820 – held inapplicable.

Gokul Chandanmal Sangvi v. State of Maharashtra andOthers 2018 (4) Mh LJ 911; P. Punnuswami v. TheReturning Officer AIR 1952 SC 64 : [1952] SCR 218;Mohinder Singh Gill & Anr. v. The Chief ElectionCommissioner, New Delhi & Ors. (1978) 1 SCC 405 :

[1978] 2 SCR 272; S. T. Muthusami v. K. Natarajan &Ors. (1988) 1 SCC 572 : [1988] 2 SCR 759; MalamSingh v. The Collector, Sehore AIR 1971 MP 195;Harnek Singh v. Charanjit Singh & Ors. (2005) 8 SCC383 : [2005] 4 Suppl. SCR 223 – referred to.

5. Section 10A of the 1959 Act and Section 9A of the 1961Act read with Articles 243-K and 243-O, are pari materia withArticle 324 of the Constitution of India. The remedy of anaggrieved person accepting or rejecting nomination of candidateis by way of an election petition in view of the bar created underSection 15A of the 1959 Act. The said Act is complete codeproviding machinery for redressal to the grievances pertainingto election as contained in Section 15 of the 1959 Act. The HighCourt though exercises extraordinary jurisdiction under Article226of the Constitution of India but such jurisdiction isdiscretionary in nature and may not be exercised in view of thefact that an efficacious alternative remedy is available and moreso exercise restraint in terms of Article 243-O of the Constitutionof India. Once alternate machinery is provided by the statute,the recourse to writ jurisdiction is not an appropriate remedy. Itis prudent discretion to be exercised by the High Court not tointerfere in the election matters, especially after declaration ofthe results of the elections but relegate the parties to the remedycontemplated by the statute. In view of the above, the writ petitionshould not have been entertained by the High Court. However,the order of the High Court that the appellant has not furnishedthe election expenses incurred on the date of election does notwarrant any interference. [Para 43][905-A-E]

886SUPREME COURT REPORTS[2020] 2 S.C.R.

From the Judgment and Order dated 10.12.2018 of the High Courtof Judicature at Bombay, Bench at Aurangabad in Writ Petition (C) No.C13642 of 2018.

With

Civil Appeal Nos. 1623-1625, 1626 of 2020.

Ms. Anitha Shenoy, Sr. Adv., Sudhanshu S. Choudhari, YogeshDKolte, 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.

EThe 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 10[th]December, 2018 passed by the learned Single Bench of the High Courtof Judicature at Bombay dismissing the writ petition filed by the appellantagainst an order of disqualification under Section 14B of the MaharashtraVillage Panchayats Act, 1959[1] on account of non-submission of electionGexpenses within the period prescribed.

3. The election of Gram Panchayat, Mugat, Taluk Mudkhed,District Nanded were held on 1[st] November, 2015. The results weredeclared on 4[th] November, 2015. The appellant was elected as Member

H1 for short, ‘1959 Act’

of Village Panchayat. The appellant was required to furnish electionexpenses within 30 days in the manner prescribed by the State ElectionCommission in terms of Section 14B of the 1959 Act. The appellantsubmitted expenses with delay of 15 days. The appellant was servedwith show cause notice on 3[rd] March, 2016 as to why she should notbe disqualified on account of failure to submit the election expenses.The appellant submitted her explanation that due to ill-health there wasa delay of 15 days in furnishing of details of expenses and that delaymay be condoned.4. The Collector as delegate of the State Election Commissionpassed an order dated 9[th] August, 2018 disqualifying the appellant for aperiod of five years to be member of Gram Panchayat only for thereason that the appellant has not submitted election expenses withintime.

5. The appeal against such order was dismissed on 19[th] November,2018 by the Additional Divisional Commissioner, Aurangabad for thereason that the medical certificate is not issued by the CompetentAuthority. The said order was challenged before the Writ Court whereinthe High Court held as under:

“5. The learned counsel for the petitioner has tendered copy ofmedical certificate on which petitioner had relied upon. The sameis taken on record and marked “X” for identification. This documenthas no particulars whatsoever, such as name, diagnosis, date andreference number etc. There is nothing mentioned. This certificateissued by private hospital bears only stamp of the doctor. It isstated that the petitioner was suffering from hypertension, diabetesand was advised bed rest. This document, on the face of it, cannotbe relied upon. If the authorities have not accepted such adocument, there is no error in the view taken by them.”

6. Learned counsel for the appellant vehemently argued that theappellant 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 Panchayatand that an order of disqualification can be passed if the candidate failsto 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

Awith applicable rules or instructions. The order of disqualifying her forfive years, in fact, jeopardises her right to contest election until 8[th] August,2023 (i.e. from the date of the order passed on 9[th] August, 2018).

7. It is argued that since the appellant is duly electedrepresentative of Village Mugat and has been elected in democraticBprocess, the disqualification for period of five years without taking intoconsideration the extent of default and the consequences ofdisqualification renders the order of disqualification as whollydisproportionate to the deficiency alleged against the appellant. It is arguedthat an order of disqualification should have been passed without delayand not nearly after 3 years of the elections. It is further argued thatCdisqualification for period of five years is the maximum period ofdisqualification whereas in terms of sub-section (2) of Section 14B ofthe 1959 Act, the disqualification can be for period less than five years.Therefore, the authority was expected to consider the nature and extentof default and consequent period of disqualification, which should beDcommensurate with the default found by such authority. The relevantSection 14B of the 1959 Act reads thus:

“14B. Disqualification by State Election Commission. –

(1) If the State Election Commission is satisfied that person, -

E(a) has failed to lodge an account of election expenses withinthe time and in the manner required by the State ElectionCommission, and

(b) has no good reason or justification for such failure, theState Election Commission may, by an order published in theFOfficial Gazette, declare him to be disqualified and such personshall be disqualified for being member of panchayat or forcontesting an election for being member for period of fiveyears from the date of this order.

(2) The State Election Commission may, for reasons to berecorded, remove any disqualification under sub-section (1) orGreduce the period of any such disqualification.”

8. bare perusal of Section 14B of the 1959 Act shows that theState Election Commission is to be satisfied as to whether person hasno good reason or justification for the failure to furnish account of electionexpenses. Secondly, in terms of sub-section (2), for the reasons to beH

recorded, the disqualification under sub-section (1) can be removed orthe period of disqualification can be reduced.

9. The Collector passed an order on 9[th] August, 2018 not acceptingthe explanation for the delayed submission of the election expenses. Inappeal, learned Additional Divisional Commissioner found that the medicalcertificate is not issued by the Competent Authority and the matter hasbeen verified by the Collector. The appellant has not submitted the electionexpenses within stipulated time, therefore, there is no error in the orderpassed by the Collector. The High Court in the writ petition found thatthe medical certificate has no particulars whatsoever such as name,diagnosis, date and reference number etc. The certificate is issued by aprivate hospital and bears only stamp of doctor. Such document wasnot accepted as reasonable explanation for not submitting the electionexpenses within time. We find that the explanation in delayed submissionof election expenses has not been accepted. Therefore, we do not findany reason to take different view than the view affirmed by the HighCourt in the writ petition filed by the appellant.

10. However, the question which arises is that whether delay of15 days necessarily follows the disqualification for period of five years.Learned counsel for the appellant submitted that the order ofdisqualification was passed by the Collector approximately 3 years afterthe election and there were only two dates of hearing for more than twoyears apart. Therefore, inordinate delay in pronouncing the disqualificationorder on the part of the Collector severely prejudices the appellant asthe period of disqualification starts from the date of the order. However,the learned counsel for the respondents relies upon judgment of thisCourt reported as Union of India & Ors. v. A.K. Pandey[2] to contendthat the mandate of Section 14B of the 1959 Act is disqualification andthe word ‘may’ have to be read as ‘shall’.

11. We do not find any merit in the argument that Section 14B ofthe 1959 Act is mandatory. Sub-section (1) of Section 14B of the saidAct empowers the State Election Commission to pass an order ofdisqualification of candidate, if the candidate fails to lodge account ofelection expenses for lack of good reason or without any justification.Such satisfaction is required to be recorded by the Election Commission.The disqualification for period of five years is not necessaryconsequence of merely not filing account of election expenses. Still2 (2009) 10 SCC 552

Afurther, subsection (2) empowers the State Election Commission forreasons to be recorded, remove any disqualification under sub-section(1) or reduce the period of any such disqualification. Since authority isvested with power to reduce the period of disqualification, therefore,makes the provision directory.

B12. This Court in A.K. Pandey held that the prohibitive or negativewords are ordinarily indicative of mandatory nature of the provisionalthough said fact alone is not conclusive. This Court held as under:-

“ 15. The principle seems to be fairly well settled that The Courthas to examine carefully the purpose of such provision and theCconsequences that may follow from non-observance thereof. Ifthe context does not show nor demands otherwise, the text of astatutory provision couched in negative form ordinarily has tobe read in the form of command. When the word “shall” isfollowed by prohibitive or negative words, the legislative intentionof making the provision absolute, peremptory and imperativeDbecomes loud and clear and ordinarily has to be inferred as such.

……………….”

13. In the present case, there is no prohibitive or negativeexpressions used in Section 14B of the 1959 Act, as it empowers theElection Commission to pass just order of disqualification. Such provisionEcannot be treated to be mandatory period of five years in view of plainlanguage of the Statute.

14. It is urged by learned counsel for the appellant that thedisqualification is disproportionate to the default committed by theappellant. In judgment reported as D. Venkata Reddy v. R. Sultan &FOrs.[3], it was held that the election is politically sacred public act, not ofone person or of one official, but of the collective will of the wholeconstituency. The challenge in the said appeal was to an election on theallegation of corrupt practices. This Court held that the valuable verdictof the people at the polls must be given due respect and should not beGdisregarded on vague, indefinite, frivolous or fanciful allegations. Theonus lies heavily on the election petitioner to make out strong case forsetting aside an election. The election results cannot be lightly brushedaside in election disputes. At the same time, it is necessary to protect thepurity and sobriety of the elections by ensuring that the candidates do

H3 (1976) 2 SCC 455

not secure the valuable votes of the people by undue influence, fraud,communal propaganda, bribery or other corrupt practices as laid downin the Act. The Court held as under:

“3. Mr P. Bassi Reddy learned Counsel for the appellant hasassailed before us the findings of the High Court on Issues 7, 26and 27 as these were the only issues which affected the appellant.Mr B. Shiv Sankar, learned Counsel for the contesting respondenthas endeavoured to support the judgment of the High Court bysubmitting that the findings arrived at by the High Court werebased on correct and proper appreciation of the evidence andthe facts and circumstances of the record. In democracy suchas ours, the purity and sanctity of elections, the sacrosanct andsacred nature of the electoral process must be preserved andmaintained. The valuable verdict of the people at the polls mustbe given due respect and candour and should not be disregardedor set at naught on vague, indefinite, frivolous or fanciful allegationsor on evidence which is of shaky or prevaricating character. Itis well settled that the onus lies heavily on the election petitionerto make out strong case for setting aside an election. In ourcountry election is fairly costly and expensive venture and theRepresentation of the People Act has provided sufficientsafeguards to make the elections fair and free. In thesecircumstances, therefore, election results cannot be lightly brushedaside in election disputes. At the same time it is necessary toprotect the purity and sobriety of the elections by ensuring thatthe candidates do not secure the valuable votes of the people byundue influence, fraud, communal propaganda, bribery or othercorrupt practices as laid down in the Act.”15. This Court in judgment reported as State of Punjab v. BaldevSingh[4 ]held that issue of removal of an elected office bearer has seriousrepercussion. It implicitly makes it imperative and obligatory on the partof the authority to have strict adherence to the statutory provisions. Itwas held that severer the punishment, greater care has to be taken tosee that all the safeguards provided in statute are scrupulously followed.

16. In Tarlochan Dev Sharma v. State of Punjab & Ors.[5], thisCourt has held that holding and enjoying an office, discharging related

4 (1999) 6 SCC 172

5 (2001) 6 SCC 260

Aduties is valuable statutory right of not only the returned candidate butalso his constituency or electoral college. Therefore, the procedureprescribed must be strictly adhered to and unless clear case is madeout, there cannot be any justification for his removal.

17. In Ravi Yashwant Bhoir v. District Collector, Raigad &BOrs.[6], this Court held that an elected official cannot be permitted to beremoved unceremoniously without following the procedure prescribedby law. Where the statutory provision has very serious repercussions, itimplicitly makes it imperative and obligatory on the part of the authorityto have strict adherence to the statutory provisions. It was held as under:

C“35. The elected official is accountable to its electorate becausehe is being elected by large number of voters. His removal hasserious repercussions as he is removed from the post and declareddisqualified to contest the elections for further stipulated period,but it also takes away the right of the people of his constituency tobe represented by him. Undoubtedly, the right to hold such postDis statutory and no person can claim any absolute or vested rightto the post, but he cannot be removed without strictly adhering tothe provisions provided by the legislature for his removal (videJyoti Basu v. Debi Ghosal [(1982) 1 SCC 691 : AIR 1982 SC983] , Mohan Lal Tripathi v. District Magistrate, Rae BareilyE[(1992) 4 SCC 80 : AIR 1993 SC 2042] and Ram Beti v. DistrictPanchayat Raj Adhikari [(1998) 1 SCC 680 : AIR 1998 SC1222] ).

36. In view of the above, the law on the issue stands crystallisedto the effect that an elected member can be removed in exceptionalFcircumstances giving strict adherence to the statutory provisionsand holding the enquiry, meeting the requirement of principles ofnatural justice and giving an incumbent an opportunity to defendhimself, for the reason that removal of an elected person castsstigma upon him and takes away his valuable statutory right. Notonly the elected office-bearer but his constituency/electoral collegeGis also deprived of representation by the person of their choice.

37. duly elected person is entitled to hold office for the term forwhich he has been elected and he can be removed only on aproved misconduct or any other procedure established under law

H6 (2012) 4 SCC 407

like “no confidence motion”, etc. The elected official is accountableto its electorate as he has been elected by large number ofvoters and it would have serious repercussions when he is removedfrom the office and further declared disqualified to contest theelection for further stipulated period.”

18. The judgments relate to the procedure to be followed in electionpetition and proof of allegation but such principles are to be followed inthe case of inflicting punishment of disqualification, which has far seriousimplication almost similar to indulging in corrupt practices in an election.The purity and transparency in election process does not give unbridledand arbitrary power to the Election Commission to pass any whimsicalorder without examining the nature of default. The extent of period ofdisqualification has to be in proportion to the default. The ElectionCommission has to keep in mind that by such process, an election ofduly elected candidate representing collective will of the voters of theconstituency is being set at naught.19. In judgment reported as Chief Executive Officer, KrishnaDistrict Co-op. Central Bank Ltd. v. K. Hanumantha Rao[7], this Courtheld that the limited power of judicial review to interfere with the penaltyis based on the doctrine of proportionality which is concept of judicialreview. If the punishment is so disproportionate that it shocks the judicialconscience, the court would interfere. The relevant extract reads asunder:

“7.2 Even otherwise, the aforesaid reason could not be validreason for interfering with the punishment imposed. It is trite thatCourts, while exercising their power of judicial review over suchmatters, do not sit as the appellate authority. Decision qua thenature and quantum is the prerogative of the disciplinary authority.It is not the function of the High Court to decide the same. It isonly in exceptional circumstances, where it is found that thepunishment/penalty awarded by the disciplinary authority/employeris wholly disproportionate, that too to an extent that it shakes theconscience of the Court, that the Court steps in and interferes.

7.2.1 No doubt, the award of punishment, which is grossly inexcess to the allegations, cannot claim immunity and remains openfor interference under limited scope for judicial review. This limited

power of judicial review to interfere with the penalty is based onthe doctrine of proportionality which is well-recognised conceptof judicial review in our jurisprudence. The punishment shouldappear to be so disproportionate that it shocks the judicialconscience. [See State of Jharkhand v. Kamal Prasad, (2014)7 SCC 223]. It would also be apt to extract the followingobservations in this behalf from the judgment of this Court inKendriya Vidyalaya Sangthan v. J. Hussain, (2013) 10 SCC106: (SCC pp. 110-12, paras 8-10)

“8. The order of the appellate authority while having relookat the case would, obviously, examine as to whether thepunishment imposed by the disciplinary authority is reasonableor not. If the appellate authority is of the opinion that the casewarrants lesser penalty, it can reduce the penalty so imposedby the disciplinary authority. Such power which vests withthe appellate authority departmentally is ordinarily not availableto the Court or tribunal. The Court while undertaking judicialreview of the matter is not supposed to substitute its own opinionon reappraisal of facts. (See UT of Dadra and Nagar Haveliv. Gulabhia M. Lad, (2010) 5 SCC 775). In exercise of powerof judicial review, however, the Court can interfere with thepunishment imposed when it is found to be totally irrational oris outrageous in defiance of logic. This limited scope of judicialreview is permissible and interference is available only whenthe punishment is shockingly disproportionate, suggesting lackof good faith. Otherwise, merely because in the opinion of theCourt lesser punishment would have been more appropriate,cannot be ground to interfere with the discretion of thedepartmental authorities.

10. An imprimatur to the aforesaid principle was accorded bythis Court as well in Ranjit Thakur v. Union of India, (1987)4 SCC 611. Speaking for the Court, Venkatachaliah, J. (as hethen was) emphasising that “all powers have legal limits”invoked the aforesaid doctrine in the following words : (SCCp. 620, para 25)

‘25. … The question of the choice and quantum ofpunishment is within the jurisdiction and discretion of the

Court Martial. But the sentence has to suit the offence andthe offender. It should not be vindictive or unduly harsh. Itshould not be so disproportionate to the offence as to shockthe conscience and amount in itself to conclusive evidenceof bias. The doctrine of proportionality, as part of the conceptof judicial review, would ensure that even on an aspectwhich is, otherwise, within the exclusive province of theCourt Martial, if the decision of the Court even as to sentenceis an outrageous defiance of logic, then the sentence wouldnot be immune from correction. Irrationality and perversityare recognised grounds of judicial review.”

20. The disqualification of candidate for five years passed underSection 14B of the 1959 Act leads to disqualification for future electionas well. Though, Section 14B of the 1959 Act empowers the Commissionto disqualify candidate for period not exceeding five years from thedate of the order, but to pass an order of disqualification for five years,which may disqualify him to contest the next elections as well requiresto be supported by cogent reasons and not merely on the fact of notfurnishing of election expenses. We find that the order of disqualificationfor period of five years is without taking into consideration the extentof default committed by the appellant and that the will of people is beinginterfered with in the wholly perfunctory way. We find that suchmechanical exercise of power without any adequate reasons, thoughrequired to be recorded, renders the order of disqualification for periodof five years as illegal and untenable. It is abdication of power which iscoupled with duty to impose just period of disqualification. Therefore,though the appellant could be disqualified for period upto five years,but we find that such period of disqualification must be supported bytangible reasons lest it would border on being disproportionate.

21. Consequently, the order dated 9[th] August 2018 passed by theCollector and subsequent orders in appeal and in the writ petition are setaside in part to the extent of prescribing disqualification for period offive years and the matter is remitted to the Collector to take intoconsideration the period of delay/default, the purport for which the electionexpenses are sought to be furnished and that the order of disqualificationoperates from the date of the order including delay in passing the orderof disqualification. The Collector shall pass the order afresh in respectof period of disqualification in accordance with law preferably within

Aperiod 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 ofthe order passed earlier by the Collector on 9[th] August, 2018 and anyelections held as consequence of the order of disqualification will abidethe final order to be passed by the Collector.BCivil Appeals @ SLP(C) Nos. 20814-20816 of 2019

Civil Appeal @ SLP(C) … Diary No. 40018 of 2019

22. Delay condoned. Leave granted.

23. The present appeals arise out of common order dated24[th] July, 2019 passed by the learned Single Bench of the High Court ofJudicature at Bombay whereby the writ petition filed by the appellantGulabrao Ananda Patil was dismissed and writ petitions filed by RiteshSuresh Patil and Pradip Nimba Patil were partly allowed.D24. The elections of Panchayat Samiti, Village Mukti, Taluk and

D24. The elections of Panchayat Samiti, Village Mukti, Taluk andDistrict Dhule, Maharashtra were held on 1[st] December, 2013. Theappellant Gulabrao Ananda Patil contested the said elections. The resultswere declared on 2[nd] December, 2013 and the appellant Gulabrao AnandaPatil was not elected. The appellant was required to furnish electionexpenses within 30 days in the manner prescribed by the State ElectionECommission in terms of Section 15B of the Maharashtra Zilla Parishadsand Panchayat Samitis Act, 1961[8]. Since the appellant did not submit theaccount of election expenses within stipulated period, he was servedwith show-cause notice on 21[st] July, 2014 to explain as to why heshould not be disqualified for next five years on account of his failure toFsubmit the account of election expenses. The appellant did not submitany reply within the prescribed time i.e. within seven days but on 28[th]August, 2014, he submitted his explanation that due to ill-health, he couldnot furnish the details of expenses. The Collector vide order dated 3[rd]November, 2014 disqualified the appellant for contesting elections for aperiod of five years. An appeal filed by the appellant was dismissed byGthe Divisional Commissioner on 18[th] December, 2017.

25. Meanwhile, the elections of Gram Panchayat, Village Muktiwere notified. The appellant submitted his nomination on 21[st] September,2017 for the post of Sarpanch. Such nomination of the appellant was

H8 for short, ‘1961 Act’

objected by Pradip Nimba Patil (Petitioner in W.P. No. 11929 of 2017before the High Court) but was rejected by the Returning Officer on25[th] September, 2017. The appellant was declared elected to the post ofSarpanch. The Returning Officer held that the disqualification is applicableonly for the elections of Zilla Parishads and Panchayat Samiti and notfor the elections of Gram Panchayat. The order of the Returning Officerwas challenged before the High Court in Writ Petition No. 11929 of2017 and in Writ Petition No. 13711 of 2017.

26. Writ Petition No. 3846 of 2018 was filed by the appellantGulabrao Ananda Patil challenging the order dated 18[th] December, 2017passed by the Divisional Commissioner confirming the order dated3[rd] November, 2014 passed by the Collector to disqualify him for periodof five years on account of his failure to submit account of electionexpenses within the stipulated period. Writ Petition No. 11929 of 2017was filed by Pradip Nimba Patil challenging the order dated25[th] September, 2017 passed by the Returning Officer whereby theobjection raised by him to the nomination of appellant Gulabrao AnandaPatil to the post of Sarpanch was rejected. Writ Petition No. 13711 of2017 was filed by Ritesh Suresh Patil (appellant herein in Civil Appealarising out of Special Leave Petition Diary No. 40018 of 2019) with aprayer to set aside the election of appellant Gulabrao Ananda Patil, whohas been declared elected as Sarpanch of Village Mukti, on the groundthat on the date of his nomination, he was disqualified from contestingthe said election. further prayer is also made by appellant Ritesh SureshPatil to declare him elected as Sarpanch of Gram Panchayat, VillageMukti by setting aside the election of Gulabrao Ananda Patil.27. The High Court dismissed the writ petition filed by GulabraoAnanda Patil. The writ petitions filed by Pradip Nimba Patil and RiteshSuresh Patil were partly allowed by setting aside the order passed bythe Returning Officer rejecting the objections raised by him while therelief claimed in the writ petition filed by Ritesh Suresh Patil to declarehim elected as Sarpanch was not granted. Appellants Gulabrao AnandaPatil and Ritesh Suresh Patil are in appeal before this Court.

28. The argument of the appellant before the High Court was thatthe order dated 3[rd] November, 2014 has been passed without consideringthe explanation of the appellant regarding his ill-health and that the orderhas been passed mechanically. The High Court found that admittedlythe appellant Gulabrao Ananda Patil has not submitted any account of

Aelection expenses incurred on the date of voting, therefore, there is noerror in the order passed by the Collector disqualifying the appellantfrom contesting election for next five years. Learned counsel for theappellant submitted that disqualification of the appellant was on accountof non-furnishing of expenses under the 1961 Act. The disqualificationunder Section 15B of the 1961 Act was to contest an election for beingBa Councillor. Such disqualification is not applicable to contest an electionin respect of another local body governed by separate statute, the 1959Act.

29. It is further submitted that the order passed by the ReturningOfficer confers cause to an aggrieved person to file an election petitionCunder Section 15 of the 1959 Act. Such order of acceptance of nominationpapers could not be challenged in writ petition in view of Article243-O of the Constitution of India and in view of alternate efficaciousremedy provided under the 1959 Act.

30. It is also submitted that the disqualification for period of fiveDyears is wholly disproportionate to the default committed by the appellantof not filing the election expenses incurred on the date of election.

31. Similar argument has been examined in an appeal preferredby Laxmi Bai. For the reasons recorded therein, we find that the orderof disqualification for period of five years is illegal and untenable andEcannot be sustained.

32. Learned counsel for the appellant referred to judgmentreported as Commissioner of Central Excise, New Delhi v. HariChand Shri Gopal & Ors.[9] to contend that the appellant has substantiallycomplied with the provisions of submitting election expenses, therefore,Fthe order of disqualification is not tenable. We do not find any merit inthe said argument. The election expenses are sought to maintain purityof election and to bring transparency in the process. The voters mustknow everything about his candidate during and post elections. Therefore,such judgment which deals with excise duty is not applicable to the factsGof the present case.

33. The provisions of Section 15B of the 1961 Act are similar tothe provisions of Section 14B of the 1959 Act. Section 15B of the 1961Act reads as under:

H9 (2011) 1 SCC 236

“15B. Disqualification by State Election Commission: -

(1) If the State Election Commission is satisfied that person,-

(a) has failed to lodge an account of election expenses within thetime and in the manner required by the State Election Commission,and

(b) has no good reason or justification for such failure, the StateElection Commission may, by an order published in the OfficialGazette, declare him to be disqualified and such person shall bedisqualified for being Councillor or for contesting an election forbeing Councillor for period of five years from the date of thisorder.

(2) The State Election Commission may, for reasons to be recorded,remove any disqualification under sub-section (1) or reduce theperiod of any such disqualification.”

34. The appellant was elected as candidate in respect of electionto Gram Panchayat conducted in terms of 1959 Act. Section 13 of thesaid Act as it existed prior to substitution by Maharashtra Act 54 of2018, contemplates disqualifications to contest for election. The relevantprovision reads as under:

“13. Persons qualified to vote and be elected

(1) Every person who is not less than 21 years of age on thelast date fixed for making nomination for every general electionor bye-election and whose name is in the list of voters shall,unless disqualified under this Act, or any other law for the timebeing in force, be qualified to vote at the election of memberfor 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 forthe time being in force, be qualified to be elected for any wardof the village. No person whose name is not entered in the listof voters for such village shall be qualified to be elected forany ward of the village…..”

35. The High Court followed its earlier judgment reported as GokulChandanmal Sangvi v. State of Maharashtra and Others[10], holding

10 2018 (4) Mh LJ 911

Athat the disqualification incurred by candidate will entail disqualificationto contest an election under 1959 Act in terms of Section 13 of the saidAct. Since the appellant has been disqualified under the provisions of1961 Act, therefore, such disqualification is disqualification for thepurposes of the elections under 1959 Act as well. Therefore, the appellantcould not contest elections for Gram Panchayat having been disqualifiedBfor period of five years under the 1961 Act. We see no reason todisagree with the findings of the High Court in this respect.

36. The High Court in Gokul Chandanmal Sangvi,whileconsidering argument that the remedy of an aggrieved person acceptingnomination papers of the present appellant is by way of election petition,Cheld that if there were illegalities in the election, it would have effect ofvitiating the election. The High Court held as under:

“10. ……..There is reference in this case about the judgmentin N. P. Punnuswami vs The Returning Officer AIR 1952 SC 64.In Punnuswami’s case, the appellant’s nomination was rejectedDand he challenged the same by writ of certiorari to quash theorder and include his name. The High Court dismissed the petitionon the ground that it had no jurisdiction to interfere with the orderof the Returning Officer. The Apex Court held that, the onlyremedy provided was by election petition to be presented afterEthe election was over and even the High Court had no jurisdictionunder Article 226 of the Constitution of India during theintermediate period. However, if there were illegalities in theelection, it would have effect of vitiating the election.

*** *** ***F17. We find that, the Returning Officer has taken stand totallycontradictory to the provisions of law while upholding thenomination of respondent No. 5. Since respondent No. 5 wasdisqualified but was allowed to contest the election, the wholeelection stands vitiated.”

G37. In the judgment reported as N. P. Punnuswami v. TheReturning Officer[11] it was held by this Court that the only remedyprovided was by election petition to be presented after the election wasover and even the High Court had no jurisdiction under Article 226 of

the Constitution of India during the intermediate period. It was held thatthe ground of rejection of nomination paper cannot be urged in any othermanner, at any other stage and before any other court. It further heldthat under the election law, the rejection of nomination paper can beused as ground to call election in question before the Authorityprescribed by law in terms of Article 329 of the Constitution of India.This Court arrived at the following conclusions:

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

(2) In conformity with this principle, the scheme the election lawin this country as well as in England is that no significance shouldbe attached to anything which does not affect the “election”; andif any irregularities are commit ted while it is in progress and theybelong to the category or class which, under the law by whichelections are governed, would have the effect of vitiatingthe’’election” and enable the person affected to call it in question,they should be brought up before special tribunal by means ofan election petition and not be made the subject of dispute beforeany court while the election is in progress.”

38. The 73[rd] Constitutional Amendment inserted Part IX in theConstitution of India. Article 243-O of the Constitution of India as insertedprovides that no election to any panchayats shall be called in questionexcept by an election petition presented to such authority and in suchmanner as provided for by or under any law made under the legislatureof 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 ofconstituencies or the allotment of seats to such constituenciesmade or purporting to be made under article 243-K, shall not becalled in question in any court;

A(b) no election to any Panchayats shall be called in question exceptby an election petition presented to such authority and in suchmanner as is provided for by or under any Law made by theLegislature of State.”

39. In terms of such constitutional provisions, Section 15A wasBinserted by Maharashtra Act No. 21 of 1994. The dispute in the presentappeals does not pertain to election to either House of the Parliamentbut to local body. The constitutional bar is contained in Article 243-Oof the Constitution of India in furtherance of which Section 15A was-inserted in the year 1994. Section 15A of the 1959 Act reads thus:

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

D40. Constitution Bench in Mohinder Singh Gill & Anr. v. TheChief Election Commissioner, New Delhi & Ors.[12 ]examined the N.P.Ponnuswami’s case and held that Article 329 of the Constitution ofIndia starts with non obstante clause that notwithstanding containedin this Constitution, no election to either house shall be called in questionexcept by an election petition. Therefore, Article 226 of the ConstitutionEof India stands pushed out where the dispute takes the form of calling inquestion an election, except in special situations pointed out but leftunexplored in Ponnuswami. It was held that there is remedy for everywrong done during the election in progress although it is postponed tothe post-election stage. The Election Tribunal has powers to give reliefFto an aggrieved candidate.

41. In respect of elections to local body, this Court in judgmentreported as S. T. Muthusami v. K. Natarajan & Ors.[13], approved FullCourt Judgment of Madhya Pradesh High Court reported as MalamSingh v. The Collector, Sehore[14], wherein it was held that there is noGconstitutional bar to the exercise of writ jurisdiction in respect of electionto local bodies such as Municipalities, Panchayat and the like but it isdesirable to resolve the election dispute speedily through the machinery

12 (1978) 1 SCC 40513 (1988) 1 SCC 572H14 AIR 1971 MP 195

of election petitions. In MalamSingh’s case, the Madhya Pradesh HighCourt held as under:

“7. The Act, therefore, furnishes complete remedy for theparticular breach complained of. The Legislature prescribed themanner in which and the stage at which the rejection of anomination paper can be raised as ground to call the election inquestion. We think it follows by necessary implication from thelanguage of Section 357(1) that this ground cannot be urged inother manner, at any other stage and before any other Court. Ifthe grounds on which an election can be called in question couldbe raised at an earlier stage and errors, if any, are rectified, therewill be no meaning in enacting provision like Section 357(1) andin setting up an election tribunal. The question of improper rejectionof nomination paper has, therefore, to be brought up before theelection tribunal by means of an election petition after theconclusion of the election.

17. Lastly, their Lordships stated that the law of election in thiscountry does not contemplate that there should be two attacks onmatters connected with election proceedings, in the followingpassage:—

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

18. There is no constitutional bar to the exercise of writ jurisdictionin respect of elections to Local Bodies such as, Municipalities,Panchayats and the like. However, as it is desirable to resolveelection disputes speedily through the machinery of electionpetitions, the Court in the exercise of its discretion should always

Adecline to invoke its writ jurisdiction in an election dispute, if thealternative remedy of an election petition is available. So, theirLordships of the Supreme Court in Sangram Singh v. ElectionTribunal, Kotah, AIR 1955 SC 425, stated:—

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

C42. This Court again examined the question in respect of raising adispute relating to an election of local body before the High Court byway of writ petition under Article 226 of the Constitution of India in ajudgment reported as Harnek Singh v. Charanjit Singh & Ors.[15]. Itwas held as under:D“15. Prayers (b) and (c) aforementioned, evidently, could not havebeen granted in favour of the petitioner by the High Court inexercise of its jurisdiction under Article 226of the Constitution ofIndia. It is true that the High Court exercises plenary jurisdictionunder Article 226of the Constitution of India. Such jurisdictionEbeing discretionary in nature may not be exercised inter alia keepingin view of the fact that an efficacious alternative remedy isavailable therefor. (See Mrs. Sanjana M. Wig Vs. Hindustan PetroCorporation Ltd., 2 (2005) 8 SCC 242: 005 (7) SCALE 290.)

16. Article 243-Oof the Constitution of India mandates that allFelection disputes must be determined only by way of an electionpetition. This by itself may not per se bar judicial review which isthe basic structure of the Constitution, but ordinarily suchjurisdiction would not be exercised. There may be some caseswhere writ petition would be entertained but in this case we arenot concerned with the said question.G

17. In C. Subrahmanyam Vs. K. Ramanjaneyullu and Others :(1998) 8 SCC 703, three-Judge Bench of this Court observedthat writ petition should not be entertained when the main questionwhich fell for decision before the High Court was non-compliance

of the provisions of the Act which was one of the grounds for anelection petition in terms Rule 12 framed under the Act.”

43. Section 10A of the 1959 Act and Section 9A of the 1961 Actread with Articles 243-K and 243-O, are pari materia with Article 324of the Constitution of India. In view of the judgments referred, we findthat the remedy of an aggrieved person accepting or rejecting nominationof candidate is by way of an election petition in view of the bar createdunder Section 15A of the 1959 Act. The said Act is complete codeproviding machinery for redressal to the grievances pertaining to electionas contained in Section 15 of the 1959 Act. The High Court thoughexercises extraordinary jurisdiction under Article 226of the Constitutionof India but such jurisdiction is discretionary in nature and may not beexercised in view of the fact that an efficacious alternative remedy isavailable and more so exercise restraint in terms of Article 243-O of theConstitution of India. Once alternate machinery is provided by the statute,the recourse to writ jurisdiction is not an appropriate remedy. It is aprudent discretion to be exercised by the High Court not to interfere inthe election matters, especially after declaration of the results of theelections but relegate the parties to the remedy contemplated by thestatute. In view of the above, the writ petition should not have beenentertained by the High Court. However, the order of the High Courtthat the appellant has not furnished the election expenses incurred onthe date of election does not warrant any interference.44. Consequently, the order passed by the Collector on 3[rd]November, 2014 and subsequent orders in appeal and in the writ petitionare set aside in part to the extent of prescribing disqualification for aperiod of five years and the matter is remitted to the Collector to takeinto consideration the nature of default, the purport for which the electionexpenses are sought to be furnished and that the order of disqualificationoperates from the date of the order including delay in passing the orderof disqualification. The Collector shall pass the order afresh in respectof period of disqualification in accordance with law preferably within aperiod 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 ofthe order passed earlier by the Collector on 3[rd] November, 2014 and thatany elections held as consequence of the order of disqualification willabide the final order to be passed by the Collector.

A45. In view of the above, Civil Appeals arising out of SpecialLeave Petitions (Civil) Nos. 16837 of 2019 and 20814-20816 of 2019are allowed in the abovementioned terms; whereas Civil Appeal arisingout of Special Leave Petition (Diary No. 40018 of 2019) is dismissed.

BDevika Gujral

Appeals disposed of.