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Kaveri Vs. The State of Maharashtra and Ors. - (High Court of Bombay) (06 Jul 2018)

Benefit of an interpretation must favour a person who is likely to suffer an irreparable harm and serious prejudice

MANU/MH/2037/2018

Election

By present petition, the Petitioner prays that, the impugned order passed by the District Collector, be quashed and set aside. The Petitioner has been removed as a member of the Gram Panchayat as well as Sarpanch of Village Gram Panchayat, Babhalkhunta under Section 13-A of the Maharashtra Village Panchayats Act, for having failed to resign as per Rule 41-A of the Maharashtra Gram Panchayat Election Rules, 1959.

The Petitioner was elected as a member of the Babhalkhunta Gram Panchayat on 9th October, 2017 after the polling took place on 7th October, 2017. She also contested the elections to the position of a Sarpanch since the said position was to be directly filled in by elections held on 7th October, 2017 under Section 30(1A) of the Maharashtra Village Panchayats Act. She was elected as a Sarpanch on 9th October, 2017.

Under Rule 41-A of the Maharashtra Gram Panchayat Election Rules, 1959, a period of seven days is prescribed, from the date of the official publication of the notice declaring the results of the elections, for a candidate to resign from one post if he has been elected to more than one post in the said elections. A notification was published by the District Collector on 11th October, 2017 notifying the results of the elections. By excluding the said date, the Petitioner was expected to resign from all but one position within seven days, which would be on or before 18th October, 2017. It is the case of the Petitioner that she has written down her resignation from the position of member of the Gram Panchayat on 13th October, 2017, signed it and posted it by RPAD to the District Collector, Beed, on the same day, from her village.

Section 13-A does not prescribe a specific time frame. It only indicates that, the resignation must be written and signed by the candidate and should be addressed to the authorized officer. It is Rule 41-A which prescribes the period of seven days from the date of the posting of the results of the election by the Returning Officer, to enable a candidate for resigning from all but one post. As such, if Section 13-A and Rule 41-A are to coexist since the Rules are accepted to be a hand-maid to the provisions, both these provisions will have to be interpreted harmoniously so as to ensure that the Rule should not run counter to the section. Neither Section 13-A nor Rule 41-A express in any manner that the resignation must be written, signed and delivered to the authorized officer within seven days from the date of the official announcement of the election results.

It is, held by the Honourable Apex Court that the benefit of interpretation in such circumstances must favour a person who is likely to suffer an irreparable harm and serious prejudice. If a letter or notice is sent by RPAD to the addressee on his correct address, the service is presumed to be effected. In the case in hand, there is no dispute that the District Collector has received the resignation on 1st November, 2017. The communication of an acceptance is complete when the communication is put in the course of transmission to the addressee so as to be out of the power of the sender. The Petitioner has posted the resignation letter duly signed by RPAD on 13th October, 2017 addressed to the District Collector. Once the letter is put in the envelope and is dispatched by RPAD, it is not within the control of the Petitioner as to when it would be delivered to the Collector.

Unless mischief is established as against the Petitioner, the conduct of the Petitioner needs to be scrutinized within the ambit of the provisions applicable. When the Petitioner has discharged her obligation by sending her resignation as a member of the Gram Panchayat within two days from the official declaration of the result, the provisions need to be interpreted in a manner so as to avoid the unseating of a democratically elected candidate.

As neither Section 13-A nor Rule 41-A mentions that, the resignation should be delivered to the authorized officer within seven days, it needs to be interpreted that, the legislature intended that the elected candidate should perform his obligation of resigning within seven days. On account of the postal delay, the Petitioner cannot be blamed so as to dislodge her from the elected position of a Sarpanch. Writ Petition is allowed. The impugned order passed by the District Collector, is quashed and set aside. The Petitioner shall be deemed to have retained her position as a Sarpanch of the said Village Gram Panchayat.

Tags : RESIGNATION   DELIVERY   POST   REMOVAL  

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