Case Note & Summary
The dispute arose from elections to the Municipal Council, Kinwat, held in November-December 2007. The petitioner, Arun Alne, was elected as a councillor from ward No. 17, while the second respondent, Laxmipati Donepelliwar, secured the second-highest votes. The second respondent filed an election petition under section 21 of the Maharashtra Municipal Councils Act challenging the petitioner’s election on grounds of disqualification and defective nomination papers. The Adhoc District Judge allowed the petition, declared the election null and void, and declared the second respondent elected. Aggrieved, the petitioner approached the High Court. The petitioner had previously been disqualified by the Collector under section 44(1)(e) of the Act on 11 October 2006 for allegedly encroaching on municipal land. However, he had appealed under section 44(4) and, on 21 May 2008, the Chief Minister set aside the Collector’s order. Meanwhile, elections were held in late 2007; the petitioner filed his nomination on 2 November 2007 and was elected on 27 November 2007. In the election petition, the second respondent contended that the disqualification subsisted at the time of nomination, rendering the petitioner ineligible under section 16(1)(a1)(ii), and also pointed to defects in the affidavit accompanying the nomination form, including insufficient stamping and incomplete information. The District Judge accepted these grounds and set aside the election. The High Court framed three issues: whether the petitioner was disqualified at the time of filing nomination due to the existing Collector’s order, even though that order was later set aside in appeal; whether the nomination was invalid due to defective affidavit; and whether it was permissible to declare the second respondent elected when there were more than two candidates and no corrupt practice was alleged. The petitioner argued that the appellate order had retrospective effect, erasing the disqualification from its inception, and that he was therefore eligible. The second respondent argued that at the crucial date of nomination, the disqualification was in force, and subsequent reversal could not cure the ineligibility. Relying on the Supreme Court decision in Baby Samuel v. Tukaram Laxman Sable (1995 Supp (4) SCC 215), the High Court held that when an appellate authority sets aside an order of disqualification, it has retrospective effect—the original order is legally vanished from day one. Consequently, the disqualification never existed and the petitioner could not be said to have been disqualified on the date of nomination. The court observed that the District Judge committed a patent error in treating the disqualification as subsisting merely because the appellate order came later. Since the disqualification ground failed, it was unnecessary to examine the affidavit or the propriety of declaring the second respondent elected. Accordingly, the High Court allowed the writ petition, quashed the judgment and order of the Adhoc District Judge, and dismissed Election Petition No. 4/2009. The petitioner’s election was restored.
Headnote
A) Election Law - Disqualification of Candidate - Retrospective Effect of Appellate Order - Maharashtra (Municipal Councils), (Nagar Panchayats) and (Industrial Townships) Act, 1965, Sections 16(1)(a1)(ii), 44(1)(e), 44(4) - The Collector disqualified the petitioner from continuing as municipal councillor; the petitioner appealed and the appellate authority set aside the disqualification after the nomination date. Held, the appellate order has retrospective effect, wiping out the disqualification from inception, so the petitioner was not disqualified at the time of nomination. The principle that an order set aside in appeal is deemed vacated from the day one of the original order applies; consequently, the basis for declaring the election void fails. (Paras 8-13)
Issue of Consideration
(i) Whether the petitioner was ineligible and disqualified to contest the election due to the adverse order under section 44(1)(e) existing at the time of filing nomination; (ii) Whether the nomination was patently illegal due to defects in the supportive affidavit; (iii) Whether it was legally permissible to declare respondent No.2 elected when more than two candidates were in the fray and no corrupt practice was alleged
Final Decision
The High Court allowed the writ petition, quashed the judgment and order of the Adhoc District Judge-2, Nanded in Election Petition No. 4/2009, and dismissed the said election petition. The election of the petitioner as councillor from ward No. 17 was restored.
Law Points
- Appellate order setting aside disqualification has retrospective effect
- wiping out disqualification from its inception
- order of lower authority stands legally vanished from day one when set aside in appeal
- consequential actions based on disqualified order fall when order is set aside
- disqualification under section 44(1)(e) read with section 16(1)(a1)(ii) of Maharashtra Municipal Councils Act
- 1965 must subsist at time of nomination
- candidate not disqualified if appellate order later sets aside disqualification
