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Judgment
A.S. Chandurkar, J
RULE. Heard finally with consent of counsel for the parties.
The petitioner who had been elected as Sarpanch of Gram Panchayat Nandgaon Chincholi has challenged the order dated 27.12.2017 passed by the
Collector refusing to permit the petitioner to cast her vote in the election of UpaÂSarpanch that was to be held on the next day.
The facts in brief giving rise to the present writ petition are that the petitioner came to be elected as a Sarpanch of the aforesaid Gram Panchayat.
The elections to the post of UpaÂSarpanch were to be held on 28.12.2017. Hence, on the previous day the petitioner as Sarpanch approached the
Collector and sought permission to cast her vote in the said election. The petitioner relied upon the judgment of the Division Bench in the case of
Anuja Kalyan Gore Versus The State of Maharashtra & Others [Writ Petition No.209 of 2018) decided on 06.03.2018 at the Aurangabad Bench of
this Court wherein it was held that the Sarpanch was entitled to cast his vote in such elections. The Collector rejected the said application on the
ground that the adjudication therein pertained to the concerned Gram Panchayat and it could not be applied to the Gram Panchayat where the
petitioner was elected as Sarpanch. Thereafter on 28.12.2017, said elections were held in which the respondent no.4 came to be elected as UpaÂ‐
Sarpanch after obtaining four votes while his opponent obtained three votes. Being aggrieved, the present writ petition has been filed on 25.01.2018.
Shri A.S. Deshpande, learned counsel for the petitioner submitted that the Collector was not justified in refusing permission to the petitioner to cast
her vote in the election of the UpaÂSarpanch. According to him, this issue stands concluded by the judgment of the Division Bench in Anuja Kalyan
Gore (supra) wherein it was held by the Division Bench that a directly elected Sarpanch was entitled to exercise rights conferred upon an elected
Member of the Panchayat including the right to cast vote at the metting even to elect the UpaÂSarpanch. Despite the fact the aforesaid decision was
brought to the notice of the Collector, he failed to follow the law laid down therein only on the ground that said judgment was applicable to the Gram
Panchayat in that case.
He also referred to the subsequent order of the Division Bench in Writ Petition No.6390 of 2018 [Manisha Janardhan Desai & Another Versus State
of Maharashtra & Others] decided at the Principal Seat following the earlier decision in Anuja Kalyan Gore (supra). It was then submitted that even
though the remedy of filing a dispute under Section 33(5) of the said Act was available to the petitioner, the same had not been filed in view of the fact
that it was the Collector who would have adjudicated the said dispute.
Hence, no useful purpose would have been served as the petitioner would have had to challenge the order of the Collector before the same Authority.
In that regard, he referred to the decision in Ram and Shyam Company Versus State of Haryana & Others [AIR 1985 SC 1147 ]and submitted that
the jurisdiction under Article 227 of the Constitution of India deserves to be exercised in these facts. He therefore submitted that the impugned order
was liable to be set aside.
Shri J.B. Gandhi, learned counsel for the respondent no.5 supported the impugned order. According to him, the petitioner should not be permitted to
bypass the statutory remedy and approach this Court directly. The remedy available under Section 33(5) of the said Act ought to have been availed. It
was his further submission that the dispute in question was required to be raised within a period of fifteen days from the date of the order and the
same was not done within said period. He however did not dispute the law as laid down in the aforesaid decisions.
Shri J.B. Kasat, learned counsel appeared for the respondent no.2 and Shri A.V. Palshikar, learned Assistant Government Pleader appeared for the
respondent nos.1 and 3.
I have heard the learned counsel for the parties at length and I have perused the documents placed on record. In the light of the judgment of the
Division Bench in Anuja Kalyan Gore (supra), it is clear that a directly elected Sarpanch is entitled to participate in the elections of the UpaÂSarpanch
and exercise all rights that are available to an elected Member. This decision has been subsequently followed in Vasundhara Shivdas Ubale (supra)
and hence the aforesaid position now stands well settled. The petitioner had moved the Collector on 27.12.2017 and by referring to the aforesaid
decision had prayed that she be permitted to vote in the election of the UpaÂSarpanch. The Collector merely observed that the orders passed in the
case of Anuja Kalyan Gore (supra) were applicable only to the concerned Gram Panchayat and hence the application preferred by the petitioner
came to be rejected. These observations of the Collector are contrary to the law as laid down. The judgment in question would be applicable as a law
laid down by this Court and would thus be binding on all the Gram Panchayats in the State. There was no legal basis for the Collector to have
observed that the law laid down in the said decision was applicable only to the concerned Gram Panchayat. On this ground, the impugned order dated
27.12.2017 is liable to be set aside. The petitioner was unnecessarily deprived from voting in the election of the UpaÂSarpanch. As a consequence the
election of the respondent no.4 as UpaÂSarpanch is also liable to be set aside in view of the fact that the respondent no.4 was elected by a margin of
only one vote.
As regards the aspect of availing the alternate remedy is concerned, the same is not an inflexible rule that in every case the party must be directed
to avail the statutory remedy available. In a given case, if it is found that there are no disputed facts and a pure legal question arises, discretion can be
exercised by entertaining the proceedings without requiring the concerned party to avail the statutory remedy. As per provisions of Section 33(5) of
the said Act, a dispute would lie before the Collector within a period of fifteen days from the date of the election. In the present case, the petitioner
approached the Collector a day prior to the election that was held on 28.12.2017. The Collector having opined that the judgment relied upon by the
petitioner would not apply to the present case was a sufficient reason for the petitioner to approach this Court by filing the present writ petition. The
writ petition has been filed on 25.01.2018 which is within a period of one month from the passing of the order dated 27.12.2017. In the light of the law
as laid down in Ram and Shyam Company (supra), it is found that the present writ petition raises a fit case which deserves to be entertained without
requiring the petitioner to further approach the Commissioner under provisions of Section 33(5) of the said Act.
In the light of aforesaid discussion, the following order is passed:Â
The order dated 27.12.2017 passed by the Collector refusing permission to the Collector to cast her vote in the election of Upa Sarpanch is set
aside. Consequently, the election of the respondent no.4 as UpaÂSarpanch is set aside. It is directed that fresh elections be held to elect UpaÂ‐
Sarpanch of Gram Panchayat Nandgaon Chincholi. The respondent no.1ÂCollector shall notify a fresh date for holding such election in accordance
with law.
The Writ Petition is allowed. Rule is made absolute in aforesaid terms. No costs.