wp 3469.20 & ors.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 3469 OF 2020
(transferred from Aurangabad Bench)
Sau.DURGESHWARI RAJESH KALE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS. ..RESPONDENTS
Mr. V D Salunke for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w. Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3466 OF 2020
(transfer from Aurangabad Bench)
VARSHARANI w/o DILIP MANE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS ..RESPONDENTS
Mr.Balaji Yenge for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3464 OF 2020
(transfer from Aurangabad Bench)
RANJANA w/o SUGRIV BORULE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS ..RESPONDENTS
1/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
Mr. Balaji Yenge for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3465 OF 2020
(transfer from Aurangabad Bench)
DAUD RASHID BIRADAR ...PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS ... RESPONDENTS
Mr. S.S. Thombre for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w. Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3427 OF 2020
(transfer from Aurangabad Bench)
MANIK MADHAVRAO WAGHMODE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS. ..RESPONDENTS
Mr. Balaji Yenge for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
2/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
ALONG WITH
CIVIL WRIT PETITION NO. 3350 OF 2020
(transferred from Aurangabad Bench)
THE GRAMPANCHAYAT PADHEGAON
THROUGH ITS SARPANCH
KRITI PRASHANT LIPTE ...PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS. ...RESPONDENTS
Mr. V D Salunke for the petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3364 OF 2020
(transferred from Aurangabad Bench)
MANISHA W/O AJINATH DHAMANE & OTHERS...PETITIONERS
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3461 OF 2020
(transferred from Aurangabad Bench)
FATRODDIN BISMIL BALDUNDE .. PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
3/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3455 OF 2020
(transferred from Aurangabad Bench)
GRAMPANCHAYAT VIDOLI B.K.
THROUGH ITS SARPANCH
RAMKISAN VISHWAMBHARRAO AWACHAR
& OTHERS ... PETITIONERS
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3375 OF 2020
(transferred from Aurangabad Bench)
UTTAMBAI W/O BABURAO PADILE .... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
4/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
ALONG WITH
CIVIL WRIT PETITION NO. 3457 OF 2020
(transferred from Aurangabad Bench)
DAUD RASHID BIRADAR .... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3394 OF 2020
(transferred from Aurangabad Bench)
MAHANANDA W/O DNYOBA MURALE ... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION STAMP NO. 239 OF 2021
(CIVIL LDVC-CW NO. 688 OF 2020)
(transferred from Nagpur Bench)
MANISHA MAHADEO INGLE ... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Anant Thotange for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
5/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
ALONG WITH
CIVIL WRIT PETITION NO. 3502 OF 2020
(transferred from Aurangabad Bench)
JYOTI SANJAY GHUGE & OTHERS ...PETITIONERS
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioners.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3503 OF 2020
(transferred from Aurangabad Bench)
VIJAYA W/O PRALHAD TAGARE .. PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3504 OF 2020
(transferred from Aurangabad Bench)
SARPANCH SEVA SANGH
THROUGH ITS GENERAL SECRETARY
BABASAHEB YADAVRAO PAVASE ...PETITIONERS
V/S
STATE OF MAHARASHTRA ...RESPONDENT
6/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
Mr. S S Thombre for the Petitioners.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION STAMP NO.92485 OF 2020
BHAUSAHEB KARBHARI KALASKAR & ORS. .. PETITIONERS
V/S.
STATE OF MAHARASHTRA & ORS .. RESPONDENTS
Mr. Vaibhav D. Kadam for the petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION STAMP NO.92489 OF 2020
THE GROUP GRAMPANCHAYAT,
NIMBHORA, GALWADA & MHASHIKOTHA
THROUGH ITS SARPANCH
ASHOK S/O PRABHAT AHIRE .. PETITIONER.
V/S.
STATE OF MAHARASHTRA & ORS .. RESPONDENTS
Mr. Pramod C. Mayure for the petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3442 OF 2020
(transferred from Aurangabad Bench)
VIJAY S/O BABURAO AHER & ORS. .. PETITIONERS
V/S.
STATE OF MAHARASHTRA & ORS .. RESPONDENTS
7/34
::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
Mr. Ravindra Gore for the petitioners.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w. Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
CORAM : S. S. SHINDE,
M. S. KARNIK, JJ
RESERVED ON : 07th SEPTEMBER, 2020
PRONOUNCED ON : 01st APRIL, 2021
JUDGMENT :
. Rule. Rule made returnable forthwith. Heard fnally with the consent of the learned Counsel appearing for the parties.
2. By these Petitions under Article 226 of the Constitution of India, the petitioners are challenging Maharashtra Ordinance No. X of 2020 dated 25/06/2020; Government Resolution (for short 'GR') dated 13/07/2020 issued by Rural Development Department, Maharashtra State; the Circular dated 14/07/2020 issued by Rural Development Department, Maharashtra State.
THE BACKGROUND FACTS
3. The term of about 14,234 Village Panchayats in the State of Maharashtra was to expire between the period from 8/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc 01/04/2020 upto 31/12/2020. Clause (1) of Article 243E of the Constitution of India provides that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for fve years from the date appointed for its frst meeting and no longer. Clause (3) (a) of Article 243E provides that an election to constitute a Panchayat shall be completed before the expiry of its duration specifed in clause (1). In view of the constitutional mandate, the State Election Commission was obliged to conduct the general elections before the expiry of their terms as provided by Article 243E. However, due to the outbreak of Covid-19 pandemic, it became impossible for the State Election Commission to conduct such elections. Hence, considering the emergency situation, the State Election Commission decided to postpone these elections until further orders. In order to ensure that the ofces of the Village Panchayats do not remain vacant and to ensure the day to day functioning of the Village Panchayats is not impeded, the State Election Commission called upon the State Government to appoint Administrators over all such Village Panchayats by communications dated 20/04/2020 and 01/06/2020.
4. The State Government promulgated an Ordinance on 25/06/2020 being Maharashtra Ordinance No. X of 9/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc 2020 ('Ordinance' for short) whereby it introduced an amendment to section 151(1) (a) of the Maharashtra Village Panchayats Act, 1959 (for short 'said Act'). By this Ordinance, proviso was added to section 151(1)(a) to enable the State Government to appoint a 'suitable' person as an Administrator over the Village Panchayats whose elections could not be held by the State Election Commission as per schedule due to natural calamity or emergency or war or fnancial emergency or administrative difculties or epidemic disease.
5. Prior to the issuance of this Ordinance, there was no provision in the Act for appointing Administrator to the Village Panchayats if the elections could not be held as per schedule due to natural calamity or such other contingencies which are beyond human control. The only provision to appoint Administrator over the Village Panchayat existed under section 151(1)(a) of the said Act enabling the State Government to appoint an Administrator only when it was dissolved by the State Government in the contingency where it appeared to the State Government that the Panchayat has not been validly constituted under the Act requiring its dissolution, but not otherwise.
10/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc 6. In exercise of powers conferred by the Ordinance, the State Government issued a Government
Resolution ('GR' for short) dated 13/07/2020 authorising the Chief Executive Ofcers of the Zilla Parishad to appoint any 'suitable' person as an Administrator on such Village Panchayats upon consultation with the Guardian Minister of the respective districts.
7. Before we proceed to deal with the submissions of learned Counsel for the petitioners on merits, it would be necessary to refer to the statement of learned Advocate General that no 'private individual' will be appointed as an Administrator and further that only such person will be appointed as Administrator who is already working as a "government ofcer / servant" till the Panchayats are constituted after holding elections.
8. In view of the statement made by learned Advocate General, learned Counsel for the petitioners submit that though the controversy arising in the present Petitions has narrowed down considerably, however, they submit that appointing a government ofcer/servant as an Administrator is 11/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc unwarranted and not necessitated. According to them, having regard to the constitutional scheme envisaging Panchayat Raj pursuant to which the said Act came to be enacted, it would be appropriate if the existing Panchayat whose term of 5 years is to come to an end (existing elected body for short) is continued/appointed as Administrator in the interregnum till the elections are held. In support of their submissions that the existing body of the Village Panchayat should be continued / appointed as Administrator, they made the following submissions. Since same issue is involved in all these Petitions, the submissions as made by learned Counsel in diferent Petitions are thus :-
SUBMISSIONS OF LD. COUNSEL FOR PETITIONERS 9.1 Reference is made to Article 40 of the directive principles of the State policy in the Constitution of India which provides that the State shall take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self- government.
9.2 Inviting our attention to Chapter IX of the 12/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Constitution of India which provides for "Panchayats", learned Counsel would submit that in furtherance of the constitutional scheme and with a view to establishing Village Panchayats for every village or group of villages and vesting them with such powers and authority as may be necessary to enable them to function as units of local self government and developmental activities in rural area, the State Government enacted the Maharashtra Village Panchayats Act, 1959.
9.3 Inviting our attention to section 27 of the said Act, learned Counsel submit that even the members of a Panchayat constituted upon its dissolution before the expiration of its duration shall continue only for the remainder of the period for which the members of the dissolved Panchayat would have continued under sub-section (1) had it not been so dissolved. The only situation for appointment of an Administrator contemplated under section 151 was in respect of the Village Panchayat which had not been validly constituted under the said Act. Learned Counsel urged that even in such a situation election has to be notifed immediately and the Panchayat had to be re-constituted enabling the freshly elected body to take over the afairs of the Panchayat.
13/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc 9.4 It was obligatory for the State Election Commission to have conducted the elections before the expiry of the term. There has been failure on the part of the State Election Commission to hold the elections. It is urged that this failure on the part of the State Election Commission can never be to the detriment of the elected body. The submission is that had the State Election Commission conducted the elections before the expiration of the term of Panchayat, the situation warranting appointment of Administrator would not have arisen. The argument of learned Counsel is that when the constitutional scheme as well as the said Act provide for afairs of the Panchayat to be managed by a duly elected body, then, the only option to deal with such a situation is to continue the existing Panchayat or appoint members of the existing Panchayat as Administrator. The object of establishing a Panchayat is to enable an elected body to function as units of a local self government and administer the Village Panchayats. The appointment of an Administrator in the interregnum would defeat the object of constituting a Panchayat and would be contrary to the provisions of the Constitution and the said Act. 9.5 It was never the contemplation of the Constitution or the said Act to allow any person other than the elected body to 14/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc administer the afairs of the Panchayat. Though learned Advocate General has made a statement clarifying the stand of the State Government as regards appointment of a government ofcial/ servant as Administrator, even then, the situation is not redressed as government ofcial/servant cannot be equated with an elected body. That there are no allegations of misuse or arbitrary exercise of powers against the existing Panchayat and therefore there is no reason why the existing body which has the necessary experience and expertise to administer the afairs of the Panchayat should not continue/ be appointed as Administrator in the interregnum.
9.6 To support the submission that existing body be continued / appointed, a reference is made to the issuance of notifcations continuing the existing boards of the Co-operative Societies under Maharashtra Co-operative Societies Act and market committees under the Agricultural Produce Market Committees Act after the expiry of their term. According to them if the State Government has decided to continue the existing bodies of the Co-operative Societies and also that of the market committees despite their term of ofce having come to an end, there was no reason for the State Government to have adopted a diferent approach in respect of the Village Panchayats. Learned 15/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Counsel distinguished the decision of this Court relied by the learned Advocate General in the case of 1State of Maharashtra Vs. State Election Commission and ors. (hereinafter referred as State of Maharashtra - 2) by contending that at the relevant time when the matter was decided by this Court, there was no statutory provision for appointment of an Administrator in case of failure to hold elections in a contingency of this kind. According to them now that there is a provision for appointment of Administrator in view of the Ordinance, the decision of this Court will have no application in the changed scenario. 9.7 Learned Counsel submits that the only way to deal with this situation thereby fulflling the object of the constitution and the enactment would be to appoint the existing elected body as an Administrator. According to learned Counsel only the existing elected body would fulfll the criteria of 'suitable' person to be appointed as an Administrator on the Village Panchayats in a surprise situation of this kind.
SUBMISSIONS OF LEARNED ADVOCATE GENERAL 10.1 Learned Advocate General Shri Kumbhakoni on the other hand invited our attention to the detailed afdavit-in-reply 1 2006(1)Mh.L.J 131 16/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc fled on behalf of the State Government in support of his submissions. Relying on Article 243E of the Constitution he would submit that every Panchayat shall continue for fve years from the date appointed for its frst meeting and no longer. Emphasizing on the words 'no longer' in Article 243E, learned Advocate General submitted that in view of the clear constitutional mandate, it is impermissible for the existing Panchayat to continue after the completion of its term of fve years. According to him, if for reasons beyond the control of the State Election Commission holding of election is not possible, the existing elected body whose term has expired has no legitimate right to continue as Administrator.
10.2 Mr. Kumbhakoni then submitted that in view the decision of this Court in Writ Petition No. 5234 of 2005 dated 10/08/2005 in the case of State of Maharashtra Vs. State Election Commission and ors (hereinafter referred to as State of Maharashtra - 1) and also in view of the decision in the case of 'State of Maharashtra - 2', the issue is no longer resintegra. He submitted that even when the provision for appointment of Administrator beyond the expiry of the constitutional term of fve years did not exist, this Court held that the State Election Commission could step in and in exercise of its powers under 17/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Article 243K, an Administrator could be appointed in such a situation. He would submit that even then the State Election Commission had appointed government ofcials as Administrator. 10.3 Mr.Kumbhakoni would then submit that the petitioners claim of parity between Village Panchayats on the one hand and on the other, the Co-operative Societies, Agricultural Produce Market Committees is unsustainable. According to him, Co-operative Societies and APMC function in diferent spheres and are constituted under separate enactments altogether. Moreover, the provision like Article 243E of the Constitution prohibiting the continuance of the existing Panchayats after the expiry of its term is not present in respect of Co-operative Societies or Agricultural Produce Market Committees. 10.4 Learned Advocate General contended that the State Election Commission requested the State Government to appoint an Administrator. Pursuant to this direction, the State took a decision to appoint a 'suitable' person as an Administrator by promulgating the Ordinance. According to him now that State Government having decided to appoint government ofcial/servant as Administrator, the petitioners cannot seek a 18/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc relief which would be directly contrary to the law laid down by this Court in 'State of Maharashtra -2'.
10.5 He would moreover submit that the State Government having decided to appoint Administrator pursuant to the directions of the State Election Commission, then in the absence of challenge to these directions of the State Election Commission, the petitioners are not justifed in seeking the relief they have prayed for. Learned Advocate General would further submit that powers under section 151 of the said Act are very wide which would include even power to appoint a 'suitable' person in the eventuality of there being a vacuum of the present nature. Learned AG would thus submit that in view of the decision of this Court in the case 'State of Maharashtra - 2', the issue stands concluded and the existing Panchayats cannot seek continuance / appointment as Administrator till the new Panchayat is constituted.
SUBMISSIONS OF LEARNED ADVOCATE FOR STATE ELECTION COMMISSION 11.1 Learned Counsel Shri Kadethankar invited our attention to the afdavit-in-reply fled on behalf of the State 19/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Election Commission. He would submit that the stand of the State Election Commission continues to be the same as it was in 2005. He would submit that a 'suitable person' would mean a government ofcial/servant. He says that the State Election Commission still persists with its stand taken before this Court in the decision 'State of Maharashtra -2', that no private person/body of persons could be appointed as Administrator on the Village Panchayats under any circumstance. He would submit that no person other than a government ofcer be appointed as Administrator in any circumstance to ensure free, fair and impartial elections and for maintaining the purity of the electoral process. According to him, continuation of existing elected body/ ofce bearers beyond the term of Panchayat is not at all permissible.
11.2 He submits that appointment of the outgoing ofce bearers (existing elected body) and members of the Village Panchayats as Administrator is a concept hostile to the constitutional scheme under Chapter IX of the Constitution. It is the stand of the State Election Commission that amendment to section 151(1)(a) of the Bombay Village Panchayats Act, 1958 as envisaged in Ordinance X of 2020 may be read down in terms of the standing instructions of 2005 and in terms of the judgment 20/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc passed by this Court in State of Maharashtra - 2 (Writ Petition No. 6405 of 2005) holding that the term 'suitable' person means a government ofcer.
12. Heard learned Counsel for the petitioners, learned Advocate General Shri Kumbhakoni for the State Government and Shri Kadethankar appearing on behalf of State Election Commission at length. We have perused the Petitions and afdavit-in-replies fled on behalf of the State Government as well as State Election Commission.
CONSIDERATION
13. At the outset we may state that though the Petitions are fled for quashing the impugned Ordinance and the consequent GRs/Circulars dated 13/07/2020, 14/07/2020 and the notifcation dated 27/07/2020, having regard to the statement made by the learned Advocate General during the course of the hearing, learned Counsel for the petitioners have restricted their challenge to the appointment of government ofcials/servants as Administrator instead of continuing/appointing the existing elected body or its ofce bearers whose term has expired as Administrator. It would be necessary to reproduce the relevant portion of the statement made by learned Advocate General on 21/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc the last date of hearing which reads thus :
"3) In paragraph no. 51 of the afdavit fled on behalf of the State dated 13th August, 2020 in Writ Petition No. AS-DB- LD-VC-188 of 2020, which is to be considered as common afdavit in the present group of matters, the State Government has made submissions, in as much as, the 'suitable person' to be appointed as an Administrator in terms of the aforesaid Ordinance in issue, is concerned. In terms of the contents of the said paragraph the administrator to be appointed is to be 'preferably' inter-alia one amongest the following Government ofcers :
1) Extension Ofcer (Agriculture)
2) Extension Ofcer (Health)
3) Extension Ofcer (Education)
4) Extension Ofcer (Panchayat) Clause (e) of the said paragraph 51 i nter alia states that only in case none of the aforesaid Government servant is available, for being appointed as such an Administrator, 'a private' individual may be appointed as an administrator.
5) This is to make it clear that, despite the aforesaid contentions raised in the afdavit, in view of the aforesaid peculiar situation and the circumstances narrated in all the paragraphs hereinabove, the State shall not make appointment of 'a private individual' as an Administrator, in terms of the aforesaid Ordinance dated 25 th June, 2020 and the Government Resolution dated 13th July, 2020, in issue in the present group of matters. It is further clarifed that, in terms of the aforesaid Ordinance and the Government Resolution only such person will be appointed as an 22/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Administrator who is already working as 'a Government Ofcer/Servant'.
6) In this regard, it is also pertinent to note that in terms of the aforesaid Ordinance and the Government Resolution, so far, Administrators have been appointed over total 4,899 Village Panchayats and that in none of these cases 'a private person' has been appointed as an Administrator. In other words over all these 4,899 Village Panchayats, only such persons have been appointed as Administrators who are already working as Government Ofcer/Servant.
7) It is hereby specifcally clarifed that, this Statement should and ought not to be read and considered either in respect of appointment of Administrators under various Statutes other than Maharashtra Village Panchayat Act or even under the Maharashtra Village Panchayat Act generally, as the same is made in view of the aforesaid peculiar situation and is restricted to the appointment of Administrators only in terms of the Ordinance dated 25 th June, 2020 and the Government Resolution dated 13 th July, 2020, which are in issue in the present group of matters, during the prevailing COVID-19 pandemic."
14. The controversy in the present Petitions has now narrowed down to the petitioners claim of seeking appointment/continuation of the existing elected body as Administrator in the interregnum till the new Panchayat is constituted. That the present pandemic warrants appointment of 23/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Administrators to 14234 Village Panchayats whose term is coming to an end between the period 01/04/2020 to 31/12/2020 is not in dispute in the present group of Petitions. The State Election Commission commenced the pre-election process in respect of Village Panchayats whose term was to expire. The pre-election process comprises of ward formation, delimitation, preparation of voters list etc. Article 243K(3) requires the State to arrange the entire machinery to enable the State Election Commission for conducting Panchayat elections.
15. Due to the outbreak of Covid-19 pandemic, by its letter dated 17/03/2020, the State Government informed the State Election Commission that arrangement of the machinery and manpower for conducting any elections was not possible as those resources would be required to contain the spread of deadly Covid-19 virus. The State Election Commission upon considering the request of the State Government decided to put on hold all the ongoing elections and pre-election processes concerning the Panchayats at the stages where they were and postponed all forthcoming elections until further orders. Considering that the terms of the Panchayats were set to expire, the State Election Commission by letters dated 20/04/2020 and 01/06/2020 instructed the State Government to appoint proper 24/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Administrators for the Panchayats before expiry of their respective terms.
16. The State Government then issued the impugned Ordinance seeking to incorporate a proviso to section 151 (1)(a) of the said Act. The amendment empowered the State Government by notifcation to appoint a 'suitable' person as an Administrator over the Village Panchayats that fall vacant on account of not holding regular elections for any of the reasons of natural calamity, pandemic or emergency or war or economic emergency or administrative inabilities etc. The State Government issued GR dated 13/07/2020 whereby powers to appoint a 'suitable' person as an Administrator came to be delegated to Chief Executive Ofcers (for short 'CEO') of Zilla Parishad of the State. The GR mandates CEOs to cause such appointment with the advise of the local Guardian Minister. By a Circular dated 14/07/2020, the qualifcations, disqualifcations, powers, duties, remunerations and privileges etc. were laid down in respect of appointment of an Administrator.
17. Article 243-E(1) of the Constitution provides that every Panchayat unless sooner dissolved under any law for 25/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc the time being in force, shall continue for fve years from the date appointed for its frst meeting and no longer. Clause (3) thereof provides that an election to constitute a Panchayat shall be completed (a) before the expiry of its duration specifed in clause (1). The said Act contains provisions in regard to the holding of elections to Panchayats that implement the mandate of the constitutional provisions. Section 11(1)(b) provides that an election to constitute a Panchayat shall be completed before the expiry of its duration of fve years as prescribed in sub-section (1) of Section 27. Section 27 provides that the members of a Panchayat shall, save as otherwise provided in the Act, hold ofce for a term of fve years.
18. The statutory provisions thus stipulate that the term of ofce of a Panchayat is for a period of fve years from the date of the frst meeting and no more. The term of around 14234 Village Panchayats in question is set to expire upon the completion of a duration of fve years during the period from 01/04/2020 to 31/12/2020. The State Election Commission called upon the State Government to appoint Administrator. The powers of the State Election Commission extend to the superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the Panchayats. The provisions of 26/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Article 243-K are pari materia to those of Article 324 of the Constitution which have been interpreted in several judgments of the Supreme Court. Article 243-K operates in areas left unoccupied by the legislation. The words 'superintendence, direction and control' are indicative of the broad sweep of the Constitutional provision. This is amplifed by the expression "conduct of elections" in respect whereof the State Election Commission exercises superintendence and control. In 2 Mohinder Singh Gill vs. Chief Election State Election Commissioner, the Supreme Court emphasised that Article 324 of the Constitution is a plenary provision vesting the whole responsibility for the conduct of elections in the State Election Commission. The State Election Commission may be called upon to answer unforeseen eventualities not contemplated by existing legislation and its power of achieving the object of free and fair elections cannot be stultifed. In this context, the following observations of the Supreme Court are signifcant:
"Even so, situations may arise which enacted law has not provided for, Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fde, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notifcation nor existing legislation.
2 1978(1) SCC 405 27/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc More is not necessary to specify, less is insufcient to leave unsaid. Art 324, in our view operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections', are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election."
19. We may mention here that as the submissions raised in these Petitions are by and large similar to the ones raised in the decision of this Court in the case of 'State of Maharashtra - 2', the said decision is extensively relied by us and some of the paragraphs are verbatim reproduced in this judgment.
20. The provisions of Article 243E clearly sets out that Panchayat can 'no longer' continue after the expiry of its duration of fve years. The impugned Ordinance empowers the State Government to appoint by notifcation in the ofcial gazette, a 'suitable' person as an Administrator over the Village Panchayats during the interregnum which is now clarifed to mean government ofcial/servant.
21. We are unable to persuade ourselves with the submissions advanced by learned Counsel for the petitioners that after the issuance of the Ordinance, the decision in the case of 28/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc 'State of Maharashtra - 2' will no longer be applicable in the present fact situation. By the impugned Ordinance what the State Government has done is to empower it to appoint Administrators in the interregnum. This statement made by learned Advocate General on behalf of the State Government is in consonance with the stand of the State Election Commission. In exercise of powers of the superintendence under Article 243K of the Constitution, the State Election Commission asked the State Government to appoint Administrator to the Gram Panchayat in the interregnum till the new Panchayat is constituted. We do not fnd any infrmity with this approach of the State Government once the State Government made a statement which is in consonance with the stand of the State Election Commission. The stand of the State Election Commission is completely in conformity with the constitutional scheme establishing Panchayat Raj and which is also upheld by this Court in the case of 'State of Maharashtra -2' . The aspect regarding consultation with the Guardian Minister in the matter of appointment of Administrator is a subject matter of a separate group of Petitions which we have dealt with independently.
22. The argument that existing Panchayats should be continued/appointed during the interregnum till the new 29/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc Panchayat is constituted on the principle of parity only because the existing boards of Co-operative Societies and ofce bearers of APMC are continued is fallacious. The Constitution has dealt with the subject of 'Co-operative Societies' in Part IX-B whereas subject of 'Panchayat' is dealt with under Part IX. Article 40 of the directive principles of the State policy says that State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government whereas Article 43B of the directive principles of the State policy envisages that the State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. The object of formation of the Village Panchayat is diferent from that of the Co-operative Societies. Moreover, Article 243E(1) of the Constitution categorically provides that Panchayat can no longer continue after the expiration of its duration of fve years which is absent in case of Co-operative Societies/ APMC's. So read and understood, the question of continuing/appointing the existing Panchayat as Administrator on the expiry of its term does not arise as that would be against the constitutional mandate and the provisions of the said Act.
30/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
23. We also do not fnd any merit in the argument of learned Counsel for the petitioners that they are best suited to be appointed as Administrators only because the existing elected body have the necessary expertise and experience to administrate the Panchayats. Any elected body has to adhere to the mandate of the Constitution as Article 243E of the Constitution provides that a Panchayat can no longer continue after expiry of its duration of fve years, hence there can be no question of appointing/continuing the petitioners as Administrators since their term of fve years is over. In case of a vacuum, it was for the Election Commission to step in, in the exercise of its powers under Article 243-K. That is what the Election Commission has done in the present case by directing the State Government to appoint Administrators.
24. It is urged by learned Counsel that what they are seeking is appointment of existing elected body as Administrator as the Ordinance now permits the State Government to appoint 'suitable' person as Administrator. This according to them would be in consonance with the constitutional scheme envisaging a Panchayat Raj to be administrated by an elected body. The said argument can only be stated to be rejected as what cannot be achieved directly could not be done indirectly. We therefore do 31/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc not fnd any merit in this submission of learned Counsel for the petitioners.
25. The upshot of the above discussion is that the spread of Covid pandemic led to a situation where it was not possible for the State Government to complete the elections within the duration of the term of fve years in respect of Village Panchayats whose terms are to expire. Under Article 243E of the Constitution, the Panchayats can no longer continue after its duration of fve years. The constitutional vacuum is not contemplated in the afairs of the State. The State Election Commission has ensured that this vacuum is obviated by directing the State to appoint Administrator for the interregnum until new Panchayats are constituted. The State Government introduced amendment to section 151(1) (a) whereby a proviso was added to section 151(1)(a) enabling the State Government to appoint a 'suitable' person as an Administrator over the Village Panchayats whose elections could not be held by the State Election Commission as per schedule due to natural calamity or emergency or war or fnancial emergency or administrative difculties or epidemic disease. There was considerable debate over the term 'suitable' person. The State Government has now made its stand clear that it would appoint government 32/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 ::: wp 3469.20 & ors.doc ofcer/servant as Administrator over these Panchayats till new Panchayats are constituted. This stand of the State Government is in consonance with that of the State Election Commission. The Petitioners want the existing elected body to be 'Administrator' till the new body is constituted. The appointment / continuance of the existing body as Administrator after expiry of their term would be contrary to the mandate of Article 243E of the Constitution & the said Act.
26. It is again clarifed that we have not dealt with the issue of 'Consultation' with the Guardian Minister before the CEO appoints an Administrator, as this is not the subject matter of challenge raised by the Petitioners in these Petitions. This issue is dealt with in a separate group of Petitions.
27. In the circumstances, we do not fnd any infrmity in the decision of the State Government appointing government ofcer/servant as Administrator. Consequently we fnd no merit in the contention of the petitioners that the existing elected body constituting the Panchayat whose term of 5 years is to expire should be appointed/continued as Administrator till new Panchayat is constituted. The Petitions shall accordingly stand dismissed. Rule is discharged with no order as to costs. 33/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::
wp 3469.20 & ors.doc
28. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(M.S.KARNIK, J. ) (S.S.SHINDE, J.) 34/34 ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:16:19 :::