R.M. Borde, J.
1. Heard.
2. Rule. Rule made returnable forthwith. The matter is taken up for final hearing at admission stage with the consent of the parties.
3. This petition is filed by the petitioners herein raising exception to the order passed by the Additional Commissioner, Nasik Division, Nasik on 28-11 2005. The petitioners are the elected members of Village Panchayat, Biloli. The general elections to the Gram Panchayat were held on 28-8-2005 and the petitioners are the elected candidates from ward Nos. 1 and 3 respectively. It transpires that respondent No. 1 raised objection with the Collector by moving an application on 15-9-2005 to the effect that the petitioners herein are disqualified to contest the elections as well as to continue on the post of member of Village Panchayat as they have incurred disqualification as laid down under Section 14(1)(a)(ii) of the Bombay Village Panchayat Act, 1958.
4. The objection raised by the respondent No. 1 is to the effect that the petitioners were involved in a crime and, in a prosecution lodged against them, they are sentenced to suffer imprisonment for one year and three months. It is stated that the judgment of Criminal Court has attained its finality. It is further contended that in view of the provisions of Section 14(1)(a)(ii) of the Bombay Village Panchayat Act, the petitioners cannot continue members of the Village Panchayat and as such they are required to be unseated. The Collector considered the objection raised by respondent No. 1 and by an order dt. 26-10-2005 declared that the petitioners are disqualified to hold and continue on the post. Said order passed by the Collector was subjected to appeal at the instance of the petitioners. The appeals were heard and disposed of by the Additional Commissioner, Nasik and after hearing both the parties same came to be dismissed by common order dt. 28-11-2005. Said judgment and order passed by the Additional Commissioner, Nasik dismissing the appeal presented by the petitioners is subject matter of challenge in this petition.
5. The only short point that has been raised by the petitioners is in respect of authority and powers of the Additional Commissioner to decide the appeal while exercising powers under Section 16 of the Bombay Village Panchayat Act. It is contended that the powers to decide appeal are required to be exercised by the Commissioner and the Additional Commissioner is not empowered to pass a verdict in an appeal presented under the provisions of Bombay Village Panchayat Act, 1958, While controverting the contentions, Shri Kazi, learned Counsel for the respondents has strenuously contended that the question in respect of exercise of jurisdiction by the Additional Commissioner to hear and dispose of the appeal was not raised before the said authority at any point of time by the petitioners. It is contended that as petitioners failed to raise this question before the Appellate Authority. It is not open for them to raise it when decision in appeal is rendered against them.
6. In order to resolve the controversy in the matter, it is appropriate to refer to the relevant provisions. Section 14(1)(a)(ii) of the Bombay Village Panchayat Act, 1958 reads thus:
14. (1) No person shall be a member of a panchayat continue as such, who:
(a) has, whether before or after the commencement of this Act, been convicted:
(i) ***** *
(ii) of any other offence and has been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release;
Section 16(2) of the Act lays down as:
16(2) [If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under Sub-section (1) from continuing to be a member.] Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appeal shall be final;
Provided that, no order shall be passed under this sub-section by the Collector against any member without giving him a reasonable opportunity of being heard.
Section 182 of the Bombay Village Panchayat Act prescribes delegation of powers which reads thus:
182(1) The State Government may, by notification in the Official Gazette, authorise the Commissioner or any other officer to exercise any of the powers which may be exercised by the State Government under this Act.
(4) Subject to the general or special orders of the State Government, the Commissioner or Collector may delegate to an officer not below the rank of Mamlatdar, Tahsildar, Naib-Tahsildar or Mahalkari, powers exercised by the Commissioner, or as the case may be, the Collector under this Act. (5) Subject to the general or special orders of the State Government, the Chief Executive Officer may delegate to any officer working under a Zilla Parishad all or any of the powers exercisable by him under this Act.
7. From perusal of the aforesaid provisions, it would be clear that the delegation of powers exercisable by the State Government can be exercised by the Commissioner or any other officer. However, the said delegation is required to be made by issuing a notification which is required to be published in Official Gazette. In the instant matter, the powers are exercisable in terms of provisions of Section 16(2) by the State Government and said powers are delegated to the Commissioner by observing procedure prescribed in that behalf. Learned Counsel for the respondent has placed reliance on provisions of Section 182(4) and contended that such delegation is permissible by the Commissioner to any lower officer. However, relevant sub-section speaks about delegation in respect of the powers which can be exercised by the Commissioner.
8. Therefore, it is impermissible to resort to Section 184(4) and delegate the functions which can be exercised by the State Government. In the instant matter, it is to be noted that the functions in respect of hearing and disposal of the appeal arc to be exercised by the State Government in terms of Section 16(2) of the Act and those powers can be delegated to the Commissioner in exercise of powers under Section 182(1) of the said Act. Learned Counsel for the petitioners has invited my attention to a notification dt. 11-11-1995 issued by the State Government thereby delegating the powers exercisable by the State Government under Section 16(2) of the Act in favour of the Commissioner. In this view of the matter, it was impermissible for Additional Commissioner to exercise jurisdiction and proceed to decide appeals. The decision rendered in appeals is thus without jurisdiction.
9. Another objection raised by the learned Counsel for the respondent is that there was no such objection by the petitioners before the concerned authority and further that the order which is not impeachable on merits shall not be interfered with. As against this, learned Counsel for the petitioner has sought leave to rely upon a reported judgment of the Apex Court in the matter of Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. reported in : [1993]2SCR454 . In para Nos. 17 and 18 of the said judgment it has been laid down as:
17. We agree with Mr. Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute. The other legatees in the Will were not parties to it. In A.R. Antulay v. R.S. Nayak when a Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with which the petitioner therein was charged and the trial was being proceeded with, he questioned by way of writ petition the jurisdiction of this Court to give such a direction. A Bench of seven judges per majority construed the meaning of the word 'jurisdiction'. Mukharji, J. as he then was, speaking per himself, Oza and Natarajan, J.I. held that the power to create or enlarge jurisdiction is legislative in character. So also the power to confer a right of appeal or to take away a right of appeal. The Parliament alone can do it by law and no Court, whether superior or inferior or both combined, can enlarge the jurisdiction of a Court and divest a person of his rights of appeal or revision. Ranganath Mishra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the Court to deal with a matter, and make an order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law. In the dissenting opinion Venkatachaliah, J. as he then was, lay down that the expression jurisdiction or prior determination is a 'verbal coat of many colours'. In the case of tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a 'legal shelter' and a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal. In that case this Court held that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952. The direction per majority was held to be void.
18. It is settled law that a decree passed by a Court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non-judice. A decree passed by such a Court is a nullity and is non-est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the state of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the Court to pass decree which cannot be cured by consent or waiver of the party.
10. It would be thus clear that even if no such objection is raised by the petitioners before the Additional Commissioner in respect of exercise of jurisdiction by him, still the Additional Commissioner is not competent to decide the matter. Failure of the petitioners to raise objection in respect of exercise of powers by the Additional Commissioner will not confer jurisdiction on him to deal with the appeal which is required to be dealt with by the Commissioner under the relevant Statute. Even consent by the parties will not confer jurisdiction on the said authority which is expressly conferred on some other authority. In the instant matter, jurisdiction to deal with the appeal has been conferred on the Commissioner and therefore exercise of jurisdiction by the Additional Commissioner is impermissible. Failure to raise objection or even consent by the parties in respect of exercise of jurisdiction by the Additional Commissioner will not render the order valid.
11. In this view of the matter, the order dt. 28-11-2005 passed by the Additional Commissioner disposing of the appeal raised by the petitioners shall have to be quashed and set aside. The matter will have to be dealt with by the Commissioner in view of the provisions of Section 16(2) of the Bombay Village Panchayat Act read with notification dt. 11-11-1959 empowering the Commissioner to deal with the appeals. In the result, the impugned order is quashed and set aside. The matter is remitted back to the Commissioner for determination of the appeal in accordance with law. The Commissioner is directed to dispose of the appeal as expeditiously as possible preferably within a period of three months from today. In the meantime, the interim order passed by this Court on 21-3-2006 shall remain operative. Rule made absolute in above terms. No costs.