WAGHJI BHIVAJI BHALERAO Vs. DIVISIONAL COMMISSIONER, AMRAVATI

JUDGEMENT

(1.) Heard learned counsel by making the Rule returnable forthwith. The question that arises for consideration is whether a person who by virtue of the provisions of Section 13 of the Maharashtra Village Panchayats Act, 1958 (for short, the said Act) is not qualified to vote and get elected as a member of the Gram Panchayat can be said to be a person aggrieved for the purposes of the provisions of Section 16(2) of the said Act in proceedings seeking disqualification of an elected member.

(2.) The facts of the case lie in a narrow compass. The petitioner claims to be a resident of the area falling within the jurisdiction of Gram Panchayat, Khandala. The respondent no.2 was elected as a member of Gram Panchayat, Savargaon Barde in the general elections that were held in 2017. The respondent no.2 was then elected as its Sarpanch. The petitioner initiated proceedings under Section 14(1)(j-5) of the said Act before the Collector seeking disqualification of the respondent no.2 on the ground that the respondent no.2 did not have the facility of toilet in his house. The respondent no.2 filed his reply and raised objection Judgment to the maintainability of the said proceedings at the instance of the petitioner. He also denied the allegations made in the disqualification application. The Collector by his order dated 16.08.2018 held that as the respondent no.2 did not have the facility of toilet in his house he was liable to be disqualified in view of the provisions of Section 14(1)(j-5) of the said Act. The respondent no.2 then filed an appeal challenging the aforesaid order before the Divisional Commissioner. The Divisional Commissioner on 17.12.2018 found that as per the panchnama submitted by the Talathi there was a toilet existing at the house of the respondent no.2. On that count the order passed by the Collector was set aside and the application for disqualification came to be rejected. Being aggrieved the petitioner has challenged the aforesaid order.

(3.) Shri A. M. Ghare, learned counsel for the respondent no.2 at the outset raised a preliminary objection to the maintainability of the writ petition at the instance of the petitioner. According to him, as the petitioner had no locus whatsoever to challenge the election of the respondent no.2, he had no locus also to file the writ petition challenging the order passed by the Judgment Divisional Commissioner. The petitioner did not suffer any legal injury on account of the impugned adjudication and therefore he did not have any legal right to question the said adjudication. Placing reliance on the decisions in Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others (2013) 4 SCC 465 and Ravi Yashwant Bhoir Vs. District Collector, Raigad and others (2012) 4 SCC 407 it was submitted that the petitioner could not be treated as a complainant in view of the fact that he had not suffered any legal injury nor was he deprived of any legal right. In absence of the petitioner having locus to challenge the said order the writ petition as filed did not deserve to be entertained.