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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

WRIT PETITION NO. 1092 OF 2012

Vijaykumar s/o Karbhari Golhar

age 45 years, occ. service

r/o Bavi, Tq. Ashti

Dist. Beed .. PETITIONER VERSUS

1. The State of Maharashtra

Through Secretary,

Urban And Rural Development Department

Mantralaya, Mumbai 32.

2. The State Election Commission

Through Returning Officer, Beed Zilla Parishad And Panchayat Samiti Election 2012

r/o Ashti, Dist. Beed.

3. Asruba s/o Rambhau Latpate

age 51 years, occ. agriculture

r/o Bavi, Tq. Ashti, Dist. Beed.

4. Savita s/o Vijaykumar Golhar

age 44 years, occ. service

r/o Bavi, Tq. Ashti, Dist. Beed.

5. Namdeo s/o Tukaram Garje

age 50 years, occ. agril

r/o Surdi (Garjewadi), Tq. Ashti

Dist. Beed.

6. Sachin s/o Ramesh Lokhande

age 30 years, occ. agril

r/o Ghata, TQ. Ashti, Dist. Beed.

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7. Keshav Ramrao Garje

age 45 years, occ. agril

r/o Patsara, Tq. Ashti, Dist. Beed.

8. Babasaheb s/o Sukhdeo Latpate

age 30 years, occ. agril

r/o Bavi, Tq. Ashti, Dist. Beed.

9. Rajendra s/o Harishchandra Shekde age 48 years, occ. agril

r/o Ashti, Tq. Ashti, Dist. Beed.

10. Savkar s/o Dadaba Dahiphale

age 40 years, occ. agril

r/o Mahindra, Tq. Ashti, Dist. Beed .. RESPONDENTS Mr. V.D. Hon, advocate holding for Mr. V.M. Chate, advocate for petitioner. Mr. G.R. Ingole, AGP for the State.

Mr. S.T. Shelke, advocate for respondent no. 2. Mr. Deshmukh, advocate holding for Mr. S.S. Thombre, advocate for respondent no. 3.

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CORAM : R.M. BORDE, J.

nd

DATE : 2 February, 2012

ORAL JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith. Learned AGP waives notice for respondent no. 1, learned counsel Mr. S.T. Shelke waives notice for wp1092.12

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respondent no. 2 and learned counsel Mr. Deshmukh holding for learned counsel Mr. S.S. Thombre waives notice for respondent no. 3. By consent of the parties, matter is taken up for final disposal at admission stage.

3. Nomination paper tendered by petitioner with a view to contest election to the seat of Councillor of Zilla Parishad came to be accepted whereas on consideration of appeal tendered by objector i.e. respondent no. 3 herein, appellate court has directed rejection of nomination paper. Objection raised by the objector to acceptance of nomination paper is referable to section 16(1)(b) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. Nomination paper is objected on the ground that petitioner is convicted in Sessions Case No. 29/2009 and is sentenced to suffer imprisonment for a period of three years. It is brought to my notice that appeal is preferred by the petitioner in the High Court and same is admitted and the substantive sentence of imprisonment has been suspended. Section 16(1)(b) of the Act reads thus :

16. Disqualification

(1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor -

(b) if, whether before or after the commencement of wp1092.12

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this Act, he has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than one year, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release;

. Section 16(2)(a) of the Act reads thus :

16. Disqualification :

(2) Notwithstanding anything contained in sub- section (1) -

(a) a disqualification under clause (a) or clause (b) of that sub-section shall not, in the case of a person who becomes so disqualified by virtue of a declaration or conviction and sentence and is at the date of the disqualification a Councillor, take effect until three months have elapsed from the date of such disqualification, or if within these three months an appeal or petition for revision is brought in respect of the conviction or sentence, until that appeal or petition is disposed of.

4. Mr. Hon, learned counsel for petitioner has vehemently contended that the view taken by learned Sessions Judge is contrary to the provisions of section 16(1)(b) and section 16(2)(a) of the Act. Petitioner who is a sitting Councillor and whose term is yet to come to an end cannot be said to be disqualified by virtue of order passed by the criminal court convicting and sentencing him to suffer imprisonment for a period of more than one year. wp1092.12

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According to learned counsel Mr. Hon, section 16(2) is in a way exception to section 16(1)(a) and 16(1)(b). Exception which is carved out to section 16(2) does apply both to a candidate who is desirous of contesting election as well as the sitting Councillor. Even assuming that restrictive interpretation is adopted to the effect that exception carved out by section 16(2) is applicable to Councillor, still the petitioner being a Councillor cannot be held to be disqualified to contest the election. Petitioner has tendered an appeal which is pending and he being a Councillor and further as his term has not come to an end, he cannot be said to have incurred disqualification within meaning of section 16(1)(b) of the Act and he is entitled to contest the election. Learned counsel Mr. Hon has also invited my attention to section 10(2) of the Act and contended that the term of office of the Councillor shall be five years. Petitioner having been declared elected on 12-3-2007, his term as a Councillor comes to an end only on 11-3-2012. The petitioner being a sitting Councillor, he is protected by virtue of exception carved out under Section 16(2)(a) of the Act.

5. I have considered the submissions advanced by Mr. Hon, learned counsel for the petitioner and have also carefully perused provisions of section 16(1)(b) and 16(2) of the Maharashtra Zilla Parishads and Panchayat wp1092.12

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Samitis Act, 1961. Section 16(1)(b) of the Act provides disqualification for being chosen as and for being a Councillor who has been convicted and is sentenced to imprisonment for not less than one year, unless a period of five years or such lessor period as the State Government may allow in any particular case has elapsed since his release. Petitioner is convicted and sentenced to suffer imprisonment by virtue of decision rendered by the Sessions Court on 19-9-2011, for a period of exceeding one year and has not yet been acquitted of the charges levelled against him. Conviction imposed by the trial court has also not been suspended by the appellate court. In my opinion, Section 16(2) carves out an exception to section 16(1) (a) and 16(1)(b) of the Act. Scope of section 16(2) of the Act is limited to a class of persons and the exception that has been carved out to section 16(1) (a) and 16(1)(b) by virtue of section 16(2) of the Act is limited to the extent of category of Councillor. Incurring of disqualification by the petitioner as a Councillor for the reason of his conviction in criminal case and sentencing him for imprisonment for a period of more than one year stands suspended by virtue of operation of section 16(2)(1) of the Act and the petitioner continues to remain Councillor since he has presented an appeal. Provisions of section 16(2)(a) do not have application in respect of category of persons who are desirous of contesting election to Zilla Parishad. The spirit of wp1092.12

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introduction of disqualification in respect of category of persons who are convicted and sentenced to imprisonment for aperiod of more than one year is to ensure that the criminal elements in the society do not inter the representative body as public representatives. The interpretation put to the provisions of section 16 of the Act is not acceptable.

6. For the reasons recorded above, petition stands dismissed. Rule discharged.

7. Parties to act on the authentic copy of this order.

8. Pending civil application, if any, does not survive and stands disposed of.

( R. M. BORDE )

JUDGE

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