Vishal Laxman Sakhare v. The State of Maharashtra & Ors.

10. Vishal disputed (and still disputes) the case of the complainants, Sagar and Dinesh Respondents Nos. 4 and 5. He says that when he filed his nomination papers, he had a no dues certificate from the Gram Panchayat. A copy is at page Exhibit “C” at page 30. This seems to have a date of around December 2020.

11. Vishal also says that the bill in question and of which nonpayment was alleged by Sagar and Dinesh was never paid by him at all. It was indeed paid on 22nd January 2021, but it was paid by one Malhari Pandurang Sakhare, Respondent No. 6, to whom Vishal had sold Survey No. 184. Vishal says this sale took place in 2016, well before he filed his nomination to elections to the Gram Panchayat.

12. Ms Karnik on behalf of the Petitioner Vishal says that this transaction of sale is in fact reflected in a resolution of the Gram Panchayat itself. That resolution was passed at a meeting held on 4th November 2019. A copy of that resolution is at Exhibit “D” along with the sale deed. We find a copy of the sale deed from page

63. What is annexed is a hard-to-read photocopy but we are able to discern a date of registration of 26th October 2016. The document itself is also of 26th October 2016 (page 68). This shows the name of Malhari Pandurang Sakhare, Respondent No. 6, and one Martand Pandurang Sakhare as the purchasers. Vishal is shown as the first of four vendors. Three others are shown as confirming parties.

13. The Gram Panchayat resolution in question is to be found at page 97. Interestingly, Sagar himself was one amongst those who proposed the resolution. At page 99, the resolution mentions the sale and the names of the parties. The Gram Panchayat approved the transaction.

14. Therefore, Ms Karnik submits that the dispute application by Sagar and Dinesh was not only false to their knowledge but was vindictive.

15. The Petition then goes on to say that without giving Vishal any notice, on 5th April 2021, the Collector, Pune issued a letter or a direction to the Block Development Officer (“BDO”), Mulshi asking for a report whether the bill had been issued to Vishal Sakhare, whether Vishal Sakhare had made payment and whether there was an acknowledgment. It seems that the BDO submitted a report on 19th April 2021 to the Collector, but he did so without any notice to Vishal. The report said that the bill was issued on 5th August 2020, but the dues were not paid by the Petitioner (Vishal). The report also said that the Gram Panchayat did not have an acknowledgment in regard to the bill of 5th August 2020, but it did have an acknowledgment in regard to a bill dated 5th November

2020.

16. Ms Karnik points out that this is materially misleading. The November bill carries forward the demand from the August bill. This is clear from the bill itself. In any case, Section 129 of the MVP Act provides for the recovery of taxes and dues. Under sub-section 2, if there is a failure to pay, the Panchayat issues a writ of demand.

17. It seems that on 14th September 2021, Sagar and Dinesh filed a bundle of documents in support of their dispute application. Vishal raised a preliminary objection to the report of the BDO. He contended that there was a suppression of material facts. He filed an application seeking an in limine dismissal of the dispute application. The Collector closed the matter and asked Vishal to file his reply in seven days.

18. Vishal came to this Court in Writ Petition No. 5805 of 2021. On 23rd September 2021, this Court passed an order by which the Gram Sevak was directed to file a report by 27th September 2021 and the Petitioner was to file a reply dealing with the report by 1st October 2021. While this was pending, the Collector, Pune issued a letter to the BDO asking for a fresh enquiry. The BDO submitted a fresh report on 23rd September 2021. This report now said that on 30th October 2019, Ranjana Laxman Sakhare, Vishal’s mother, had filed an application to have her name removed in regard to Survey No. 184. It mentions the 4th November 2019 Resolution NO. 116(29) mentioned above. But it says that this was not shown in the taxation register and in the digitisation process, this was overlooked due to the negligence of a Gram Panchayat employee. A copy of this report is at Exhibit “I” to the Petition.

19. Vishal then filed his reply opposing the dispute application. He pointed out that he was not the owner of the property after 23rd October 2016 and that the tax liability fell on his purchaser. He was the vendor.

20. On 26th October 2021, in these dispute proceedings, Malhari, Respondent No. 6, Vishal’s purchaser of Survey No. 184, filed an intervention application. He was allowed to file his submissions. He accepted that it was he, Malhari, who had made payment of the bill on 22nd October 2021.

21. The Collector heard the matter. On 10th December 2021, he rejected the dispute application.

22. Dinesh filed an appeal to the Additional Divisional Commissioner inter alia under Sections 14 and 16 of the MVP Act. On 9th February 2023, the Additional Divisional Commissioner passed an order reversing the order of the Collector rejecting the dispute application.

23. That order is impugned in the Petition. A copy is at Exhibit “O” and we turn to it directly. It is at page 226. In the course of this hearing, one aspect that has struck us is that there is no defence of the impugned order by or on behalf of the 2nd Respondent, the Additional Divisional Commissioner. The opposition of the Petition comes entirely from Mr Khandeparkar, representing Sagar and Dinesh. Mr Khandeparkar has laboured long and hard to justify the Additional Divisional Commissioner’s order. Part of his submissions seem to us an attempt to supply reasons that we do not find in the impugned order.

24. One of the most striking things about the impugned order is that it is based entirely on the first BDO report of 19th April 2021 and does not take into account the subsequent report of 23rd September 2021 at all. This second report is at Exhibit “I” to the Petition at page 135. We have summarised its essence above, but at this stage a more detailed scrutiny is necessary. This report notes that on 4th November 2019, a resolution was passed removing the name of Ranjana Laxman Sakhare from Survey No. 184. It also mentions that an updating of the records remained to be done. Now this is an official report, and we are unable to see how the Additional Divisional Commissioner could possibly have so entirely overlooked it.

25. What Mr Khandeparkar for Sagar and Dinesh now attempts is exceedingly odd. Apart from trying to embellish the impugned order, he now tries to explain the demand or the bill by saying that on Survey No. 184, there were two structures with a common water connection, that only one was sold and, therefore, it was the liability of the Petitioner, Vishal, to pay the water bill that continued in his name. There is nothing in the bill to suggest this. There is nothing in the demand to suggest this. The reports from the BDO do not suggest this. The Gram Panchayat resolution does not reflect this. The 6th Respondent, the purchase of Survey No 184, does not support this. The order of the Collector does not say so. This is not even the substance of the Additional Divisional Commissioner’s order. This is why we believe that the argument seems to us to be one more of desperation than substance.

26. As a matter of law, the impugned order is vulnerable because it fails both well-established tests, namely Wednesbury unreasonableness and the doctrine of proportionality. We have had occasion to consider this aspect of the law at some length in previous matters.

27. The law in this regard is well settled. Our Supreme Court, on an exhaustive consideration of the law as it evolved in England, and taking into account the principles enunciated in Associated Provincial Picture Houses v Wednesbury Corporation[1] and Council of Civil Service Unions v Minister for the Civil Service (“CCSU”)2 has drawn a distinction in Union of India v G Ganayutham[3] between primary and secondary judicial review. The first occurs where fundamental rights are involved, the second where they are not. The Supreme Court itself has had occasion to comment that there may indeed be cases in judicial review that are covered by both. Further, the evolution of law has taken into account emerging doctrines, that is to say Wednesbury unreasonableness on the one hand and proportionately as a more recent emergent doctrine.

28. In Wednesbury, Lord Greene said: “… It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible

2 Council Of Civil Service Unions & Ors v Minister for the Civil Service, [1983] UKHL 6: [1984] 3 All ER 935: [1984] 3 WLR 1174.

person could even dream that it lay within the powers of the authority. … In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.” … “… it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. … The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.”

29. In CCSU, Diplock LJ for the House of Lords spoke of ‘irrationality’ in these words: By ‘irrationality’ I mean what can by now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

30. Even as Wednesbury unreasonableness continued to inform decisions of Courts with the power of judicial review, not only here but in many other jurisdictions, there came into ascendance a parallel doctrine of proportionality. This is not necessarily linked to the award of punishment. It may be a facet of reasonableness. Its tests are slightly different from those of Wednesbury unreasonableness. The doctrine tells us that in any executive or administrative action, the act or thing done or ordered to be done cannot be so disproportionate to the cause for that order. To put it more colloquially, an administrator or an executive cannot use our hammer to kill an ant.[4]

31. In CCSU, Diplock LJ foresaw the advent of the proportionality doctrine: “Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’… ”

32. The CCSU standard was accepted in Union of India & Anr v G Ganayutham.[5] The two doctrines received an elucidation in Om Kumar & Ors v Union of India,[6] particularly on the question of primary judicial review (where fundamental rights are involved) and secondary judicial review (where they are not).[7] The scope of the

4 See: R v Goldstein, [1983] 1 WLR 151: [1983] 1 All ER 434: per Diplock LJ: “This would indeed be using a sledge-hammer to crack a nut.” Or a paring knife, not a battle axe: Central Cooperative Bank v Coimbatore District Central Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669.

7 See also: Kerala State Beverages (M&M) Corporation Ltd v PP Suresh & Ors, (2019) 9 SCC 710. proportionality principle came to be examined in Coimbatore District Central Cooperative Bank v Coimbatore District Central Cooperative Bank Employees Association & Anr.[8] The Supreme Court said:

17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”.

18. “Proportionality” is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible priorities. …

21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a “sledgehammer to crack a nut”. As has been said many a time; “where paring knife suffices, battle axe is precluded”.

33. As the Supreme Court itself noted, the proportionality principle is a test of whether the decision-maker has achieved the correct balance: Chairman, All India Railway Recruitment Board & Anr v K Shyam Kumar & Ors.[9] In Ganayutham, the Supreme Court said: “To arrive at a decision on “reasonableness” the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one.”

34. At least one decision of the Supreme Court reviews more recent thinking in England that the doctrine of proportionately has supplanted Wednesbury unreasonableness but our Supreme Court held that there is no such clear-cut division: Jitendra Kumar & Ors v State of Haryana & Anr.10 In given cases both will apply. Wednesbury

10 (2008) 2 SCC 161: “We, with greatest respect, do not have any such problem. This Court not only has noticed the development of law in this field but applied the same also.” unreasonableness will speak to the rationality of a decision-making process. It has distinct components. One of these is a test of procedural irregularity. Another test is one of reasonableness, to test whether the decision is of a kind that no reasonable person could ever take. In the words of Diplock LJ in CCSU, the Wednesbury principle, formulated by Lord Greene, is whether the decision is so outrageous in its defiance of law or logic that it cannot possibly be sustained. Proportionality will speak to, as the Supreme Court said in All India Recruitment Board, examining if the decision achieves the required balance. In a complete analysis, the Supreme Court held: Wednesbury and Proportionality

36. Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223::: (1947) 2 All ER 680 (CA)] applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to “assess the balance or equation” struck by the decisionmaker. Proportionality test in some jurisdictions is also described as the “least injurious means” or “minimal impairment” test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future.

37. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.

38. Leyland and Anthony in Textbook on Administrative Law (5th Edn. OUP, 2005) at p. 331 has amply put as follows: “Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision.”

39. The courts have to develop an indefeasible and principled approach to proportionality, till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decisionmaker. Application of the principles

42. We will now apply the proportionality test to the three alternatives suggested. Principle of proportionality, as we have already indicated, is more concerned with the aims of the decision-maker and whether the decision-maker has achieved the correct balance. The proportionality test may require the attention of the court to be directed to the relative weight according to interest and considerations. When we apply that test and look at the three alternatives, we are of the view that the decisionmaker has struck a correct balance in accepting the second alternative. The first alternative was not accepted not only because such a process was time-consuming and expensive, but nobody favoured that option, and even the candidates who had approached the court were more in favour of the second alternative. Applying the proportionality test also in our view the Board has struck the correct balance in adopting the second alternative which was well balanced and harmonious.

43. We, therefore hold, applying the test of Wednesbury unreasonableness as well as the proportionality test, the decision taken by the Board in the facts and circumstances of this case was fair, reasonable, well balanced and harmonious. By accepting the third alternative, the High Court was perpetuating the illegality since there were serious allegations of leakage of question papers, large scale of impersonation by candidates and mass copying in the first written test.

35. Evidently, the Additional Divisional Commissioner could not have taken into account irrelevant material, i.e., matters of the kind that Mr Khandeparkar suggests. Equally, he could not have ignored directly relevant and germane material, namely the second report of the BDO.

36. This, in our view, would also amount to ‘perversity’. That is an expression that has received judicial interpretation from our Supreme Court in several cases. In Arulvelu & Anr v State11 the Supreme Court considered the considerable case law on the subject. It reaffirmed the view that finding unsupported by (or contrary to) evidence on record, or based on no evidence at all, or against the law, or which is procedurally irregular is ‘perverse’.12 The Supreme Court considered various lexical definitions.13 In the context inter alia of Article 226 of the Constitution of India, the Supreme Court reaffirmed the statement of law in Kuldeep Singh v Commissioner of Police,14 that a decision based on no evidence or so thoroughly unreliable evidence that no reasonable person would act upon it

37. The consequence of a disqualification is severe. The approach to an application seeking disqualification cannot be casual. There can be no presumption of disqualification. There must be a strict adherence to the parameters of disqualification. There can be no question of disqualification by inference, conjecture or surmise. Either a person is disqualified on the established facts or the person is not. Indeed, we would go so far as to say that if there is ambiguity, the benefit of doubt must be given to the person who stands elected, because this is, after all, a democratic process in question. That process is not to be subverted, nor to be lightly interfered with. The Additional Divisional Commissioner should at once have seen the inherent contradictions in what Sagar and Dinesh were saying. Notably, the Additional Divisional Commissioner entirely overlooked Sagar’s own participation in the matter of the Panchayat resolution approving the sale of Survey No. 184, viz., that Sagar himself proposed the resolution. He could hardly be heard to say thereafter that there was no sale. The sale became the subject matter of a Gram Panchayat Resolution No. 29 at its 116th meeting. The item was on the agenda. A resolution was passed. How this fact could have entirely escaped the Additional Divisional Commissioner is difficult to understand. How Sagar could have claimed now that there was no sale when it was he who proposed the resolution approving the sale was something for Sagar to explain, not Vishal.

15 Excise and Taxation Officer-cum-Assessing Authority v Gopi Nath & Sons, 1992 Supp (2) SCC 312; SR Tewari v Union of India & Anr, (2013) 6 SCC 602.

38. Mr Khandeparkar’s next argument is equally one that we cannot accept. His submission is that if Vishal is aggrieved by the assessment levy or imposition of a tax, he must file an appeal under Section 124(5). A further appeal is provided to the Standing Committee and that decision is to be final. The first appeal is to be made within 30 days of the presentation of the bill, and the further appeal within 30 days of the Samiti’s decision. We are unable to see how this can possibly come to the assistance of Sagar or Dinesh. Vishal has never disputed the existence of the bill. His only case is that it is not he who is liable to pay the bill, but Malhari, to whom he is sold Survey No. 184. Vishal says so, and Malhari agrees. Malhari intervened before the Collector. He confirmed that he was the purchaser of the property. He went a step further. He confirmed that the bill was indeed paid but that it was he, Malhari, Respondent No. 6, who had paid it. There is simply no scope for the application of Section 124(5).16

39. That really ends the matter entirely because the essence of the dispute application is that the bill was (i) unpaid on the date of the election; and (ii) that it was paid only after election

(i) Arun Vaman Kane v State of Maharashtra & Ors, 1997 SCC OnLine Bom 9: (1997) 2 Mah LJ 756: (1997) 4 Bom CR 220; Taibai w/o Tulsiram Damle v Additional Commissioner, Amravati Divisions & Ors, 2008 SCC OnLine Bom 807: (2008) 6 Mah LJ 369: 2009 Supp Bom CR 1022; Jijabai Tukaram Gaikwad v State of Maharashtra & Ors, 2017 SCC OnLine Bom 8462: (2017) 3 Mah LJ 431: (2017) 4 Bom CR 8; Suvarna Prakash Patil v Anil Hindurao Powar, 2003 SCC OnLine Bom 924: (2004) 1 Mah LJ 1062. None of these have a bearing on the case given its factual position, i.e., that while the bill and the payment are undisputed, the liability is shown to be that of Respondent No. 6, Malhari, not the Petitioner, Vishal. on 22nd January 2021. The first posits that the bill was payable by Vishal in the first place. This fact is not established. Indeed, Vishal has been able to establish the reverse. His stand is confirmed by Malhari, his purchaser. The second point proceeds on an assumption, and it is only an assumption, that on 22nd January 2021, i.e., after the election, it was Vishal who paid the bill and, therefore, Vishal is the defaulter. But this is also shown to be factually incorrect, for it was Malhari who paid the bill on 22nd January 2021, not Vishal. These were self-evident factual aspects that the Additional Divisional Commissioner could not possibly have overlooked. The entire impugned order is a classic case of an authority wholly misdirecting itself and proceeding on conjectures, surmises and assumptions while ignoring the factual position.

40. No amount of argumentation from Sagar or Dinesh is now going to help this because (i) the factual aspects cannot be disputed by them, i.e., the sale by Vishal to Malhari of Survey No. 84; (ii) the approval of that sale by the Gram Panchayat in 2019 vide a resolution proposed by Sagar himself; and (iii) the payment of the bill by the purchaser, Malhari. These are all matters of fact and record. They are not capable of being disputed. It is not possible for Sagar and Dinesh to have us hold that the property ‘must be held to have had’ two structures or that these two structures ‘must be held to have had’ a common water connection or that the bill must, therefore, ‘be held’ to have been correctly raised on Vishal despite the same. Nothing on record even remotely indicates this. Even Sagar’s own conduct, consistently unexplained, does not.

41. The Petition succeeds. Rule is made absolute in terms of prayer clauses (a) and (b) which are set out below: “(a) That the record and proceedings be called for in Appeal No. Pune- 23/ 2021 filed before The Additional Divisional Commissioner, Pune Division, Pune. i.e. Respondent No. 2. (b) That after perusal of the same the Hon’ble court be pleased to quash and set aside the impugned Judgment and order dated 09.02.2023 passed by the Additional Commissioner, Pune Division by which the Petitioner has been disqualified.”

42. The impugned order of the Additional Divisional Commissioner is set aside. The order of the Collector is restored. The dispute application was correctly rejected.

43. The Petition is disposed of. In the facts and circumstances of the case, there will be no order as to costs.

44. All concerned will act on an authenticated copy of this order. We clarify that Vishal is entitled to vote and fully participate in all Gram Panchayat matters and at all Gram Panchayat meetings including the one that is scheduled on Monday, 25th September

2023. (Kamal Khata, J) (G. S. Patel, J)