Bombay High Court
Mohan vs 83] Sau. Surekha Subhashrao ... on 15 October, 2013
Bench: B.P. Dharmadhikari, R.V. Ghuge
{1}
revised 4001.12.odt
THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4001 of 2012
Mohan s/o. Marotrao Patil-Taklikar,
Age 58 years, Occ. Agril,
R/o. Takali, Tq. Naigaon,
District Nanded.
Petitioner
Versus
1] The State of Maharashtra through
the Secretary, Rural Development Department,
Mantralaya, Mumbai-32.
2] The Collector, Nanded,
District Nanded.
3] The Chief Executive Officer,
Zilla Parishad, Nanded.
4] The Sub-Divisional Officer,
Nanded District Nanded.
5]The Secretary/Dy. Chief Officer,
Zilla Parishad, Nanded.
6] Sau. Mangarani w/o. Sureshrao Ambulgekar
Age major, Occ. Housewife,
R/o. Zilla Parishad Quarter, Zilla Parishad, Nanded
Tq. and Dist. Nanded.
7] Sau. Kaushlyabai w/o. Venkatrao Tamshette,
Age Major, Occ. Housewife,
R/o. Zilla Parishad Quarter, Zilla Parishad, Nanded
Tq. and Dist. Nanded.
::: Downloaded on - 27/11/2013 20:27:03 :::
{2}
revised 4001.12.odt
8] Pravin s/o. Prataprao Patil Chikhalikar
Age major , Occ. Agri.
R/o. Zilla Parishad Quarter, Zilla Parishad, Nanded
Tq. and Dist. Nanded.
9] Sanjay s/o. Bhimrao Karhale
Age Major, Occ. Agri,
R/o. Zilla Parishad Quarter, Zilla Parishad, Nanded
Tq. and Dist. Nanded.
10] Prakash s/o. Gabba Rathod
Age Major, Occ. Agri.,
R/o. Zilla Parishad Quarter, Zilla Parishad, Nanded
Tq. and Dist. Nanded.
11] Diliprao Vyankatrao Patil
Age Major. Occ. Agriculture.
12] Avinash Madhukarrao Ghate
Age Major. Occ. Agriculture.
13] Laxmanrao Gangaram Thakkarwad
Age Major. Occ. Agriculture.
14] Sau. Vandana Sanjayrao Lahankar
Age Major. Occ. Household.
15] Sanjay Madhavrao Belge,
Age Major. Occ. Agriculture.
16] Shrinivas Janakrao More
Age Major. Occ. Agriculture.
::: Downloaded on - 27/11/2013 20:27:03 :::
{3}
revised 4001.12.odt
17] Bandusing Gomaji Naik
Age Major. Occ. Agriculture.
18] Diliprao Shankarrao Dhondge,
Age Major. Occ. Agriculture.
19] Smt. Vatsalabai Marotrao Puyad
Age Major. Occ. Household.
20] Pratibhatai Rajaram Deshmukh
Age Major. Occ. Household.
21] Nandabai Dhanlal Pawar
Age Major. Occ. Household
22] Swapnil Sheshrao Chavhan
Age Major. Occ. Agriculture.
23] Shri Ganeshrao Shivajirao Savale
Age Major. Occ. Agriculture.
24] Sau. Sarika Gajanan Pawar
Age Major. Occ. Household.
25] Marotrao Vyankatrao Ravale
Age Major. Occ. Agriculture.
26] Sau. Kushvati Madhavrao Bhise,
Age Major. Occ. Household.
::: Downloaded on - 27/11/2013 20:27:03 :::
{4}
revised 4001.12.odt
27] Sau. Surekha Ramdas Bodake
Age Major. Occ. Household.
28] Shivajirao Shridharrao Deshmukh
Age Major. Occ. Agriculture.
29] Sau. Pankaja Chandrakant Kendre
Age Major. Occ. Household.
30] Sau. Parvatibai Irba Suryawanshi
Age Major. Occ. Household.
31] Sau. Shivkashi Govindrao Godare
Age Major. Occ. Household.
32] Dashrath Mangaji Lohbande
Age Major. Occ. Agriculture.
33] Gangadhar Yadavrao Totlod,
Age Major. Occ. Agriculture.
34] Dinkar Ganpatrao Shevale
Age Major. Occ. Agriculture.
35] Sau. Vimalbai Shivaji Nainwad
Age Major. Occ. Household
36] Sau. Bhartibai Rajaram Pawar,
Age Major. Occ. Household.
37] Sau. Vashatai Sanjayrao Bhosikar
Age Major. Occ. Household.
::: Downloaded on - 27/11/2013 20:27:03 :::
{5}
revised 4001.12.odt
38] Sau. Panchfulabai Shivram Jadhav
Age Major. Occ. Household
39] Sau. Pushpabai Sudhakar Mahajan
Age Major. Occ. Household
40] Ramesh Bhujangrao Sarode
Age Major. Occ. Agriculture.
41] Sau. Lalita Vithalrao Chintalwar
Age Major. Occ. Household
42] Sau. Gangabai Suryakant Patil
Age Major. Occ. Household.
43] Sanjay Bhimrao Karale
Age Major. Occ. Agriculture.
44] Subhashrao Alla Rathod
Age Major. Occ. Agriculture.
45] Sau Jayashri Nilesh Pawade
Age Major. Occ. Household
46] Balwantrao Madhavrao Patil
Age Major. Occ. Agriculture.
47] Pandurang Ghanshyam Gaikwad
Age Major. Occ. Agriculture.
48] Nagorao Vyankatrao Ingole
Age Major. Occ. Agriculture.
::: Downloaded on - 27/11/2013 20:27:03 :::
{6}
revised 4001.12.odt
49] Sau. Ashwini Ashokrao Patil
Age Major. Occ. Household.
50] Vyankatesh Nagnathrao Sambutwad
Age Major. Occ. Agriculture.
51] Rohidas Mohanrao Jadhav
Age Major. Occ. Agriculture.
52] Baburao Sambhajirao Gire,
Age Major. Occ. Agriculture.
53] Purushottam Keshavrao Dhondge,
Age Major. Occ. Agriculture.
54] Dinkar Omprakash Dahiphale
Age Major. Occ. Agriculture.
55] Sau. Vimalbai Jyotiba Kharate
Age Major. Occ. Household
56] Sau. Madhumati Rajesh Deshmukh.
Age Major. Occ. Household.
57] Sau. Kaveri Bajirao Bhalerao
Age Major. Occ. Household
58] Sau. Gopabai Devaji Manjalkar
Age Major. Occ. Household.
59] Sau. Manisha Pandurang Nageshwar
Age Major. Occ. Household.
60] Sau. Gajubai Khanderao Moghe
Age Major. Occ. Household.
::: Downloaded on - 27/11/2013 20:27:03 :::
{7}
revised 4001.12.odt
61] Sau. Shobhabai Gopinathrao Mungal
Age Major. Occ. Household.
62] Bandu Bhaurao Pawade
Age Major. Occ. Agriculture.
63] Sau. Sunita Gangadharrao Harale
Age Major. Occ. Household
64] Sau. Kamalbai Prakashrao Patil
Age Major. Occ. Household.
65] Sau. Anusaya Ambadas Rajurkar
Age Major. Occ. Household.
66] Diliprao Ganpatrao Debgunde
Age Major. Occ. Agriculture.
67] Sau. Savitribai Madhavrao Renge
Age Major. Occ. Household.
68] Wamanrao Vitthalrao Wankhede
Age Major. Occ. Agriculture.
69] Subhashrao Vithalrao Patil
Age Major. Occ. Agriculture.
70] Sau. Anysayabai Balaji Vaijale
Age Major. Occ. Household.
71] Ashokrao Amrutrao Patil
Age Major. Occ. Agriculture.
::: Downloaded on - 27/11/2013 20:27:03 :::
{8}
revised 4001.12.odt
72] Sau. Mangalabai Ananda Gundale
Age Major. Occ. Household.
73] Rameshrao Laxmanrao Ghantalwar
Age Major. Occ. Agriculture.
74] Sau. Minakshi Shivaji Kagade
Age Major. Occ. Household
75] Shivaji Limbaji Devtale
Age Major. Occ. Agriculture.
76] Sau. Sindhutai Ananda Maklekar
Age Major. Occ. Household.
77] Shaikh Rehana Begum Shaikh Chand
Age Major. Occ. Household.
78] Sau. Kamalbai Sambhaji Hulkane
Age Major. Occ. Household.
79] Sau. Shashikalabai Madhavrao Kadam
Age Major. Occ. Household.
80] Sau. Sangita Vijaykumar Dhondge,
Age Major. Occ. Household.
81] Sau. Kalawati Bandu Bhusare
Age Major. Occ. Household.
82] Sau. Mahadevi Nagnathrao Wadekar
Age Major. Occ. Household.
83] Sau. Surekha Subhashrao Gaikwad
Age Major. Occ. Household.
Respondents
::: Downloaded on - 27/11/2013 20:27:03 :::
{9}
revised 4001.12.odt
Mr. P.D. Bachate, Advocate for the Petitioner.
Mr. P.P. More, AGP for respondent No.1,2 & 4,
Mr. S.B. Talekar, Advocate for respondent No.52,
Mr. S.T. Veer, Advocate for respondent No.11
Mr. S.B. Sangle, Advocate for respondent Nos. 3 and 5.
Mr. A.N. Nagargoje, Advocate for respondent No.55
Mr. Y.B. Pathan, Advocate for respondent Nos. 6 to 8, 10,
47,48,69, 83
ig CORAM : B.P. DHARMADHIKARI &
RAVINDRA V. GHUGE, JJ.
DATE : 15th OCTOBER, 2013.
ORAL JUDGMENT [ PER B.P. DHARMADHIKARI,J]:-
1] Heard. Rule. Rule made returnable forthwith. Taken up
for final hearing by consent of parties.
The only question is whether election of Committee
members of Subject Committees and election of chairman of these
Committees, as contemplated by Section 81 and Section 83 of the
Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, have
been held in present matter, in accordance with law.
2] General elections of Zilla Parishad, Nanded took place on
7th February,2012 and results were announced on 17.2.2012. The
Sub-Divisional Officer, on 19.3.2012 issued communication
{10}
revised 4001.12.odt
convening special meeting of the newly elected Zilla Parishad
members on 2.4.2012 for election of Chairman of various subject
committees. In the meanwhile, i.e. on 23.1.2012, President and Vice
President of the Zilla Parishad were elected in its first meeting by the
Zilla Parishad. In the meeting conducted on 2/4/2012, no election for
any post of Chairman took place on that day but those powers were
given to President. The Secretary of the Zilla Parishad issued notice
on 9.4.2012 and called for General Body meeting on 19.4.2012.
Meeting was convened as per the provisions of Section 78, 79 and
79A of the Maharashtra Zilla Parishad and Panchayat Samitis Act,
1961 (hereinafter referred to as "the 1961 Act" for sake of brevity).
On 19.4.2012, the meeting was presided over by President of the Zilla
Parishad, and proceedings show that unanimously all Chairmen of
Subject Committees have been elected.
2] It is not in dispute that present petitioner has also been
elected as member of the Education and Sports Committee on that
day. In this background, Advocate Shri Bachate submits that elections
need to be conducted only in accordance with Section 83(2) of the
1961 Act i.e. in a meeting presided over either by the Collector of his
authorized representative and as no such meeting was held at any
point of time, the elections of Chairmen must fall to ground. He
further invites attention to other provisions to argue that there has to
be election of Chairmen of Subject committees in a meeting presided
over by the Collector or his authorized representative not below the
rank of Deputy Collector and those powers cannot be delegated to
{11}
revised 4001.12.odt
President. He has also taken us through relevant rules to point out how
the entire procedure prescribed for holding of elections is already in
existence. He contends that election of the members of the Subject
Committee need to be held as per S.81(3) by following the system of
proportional representation by means of single transferable vote.
3] Learned AGP appearing for respondent Nos.1, 2 and 4
states that he is still awaiting instructions.
4]
Advocate Shri Talekar for respondent No.52, and
Advocate Shri Veer for respondent Nos. 11 and 15, have opposed the
petition. They submit that petitioner was a willing party to the
resolution passed on 2.4.2012, as also on 19.4.2012. In fact, he
himself is the beneficiary thereof and hence, cannot now turn around
and question the process. All committees have been functioning
smoothly since last about 1 and half year and, therefore, this court
should not interfere at this juncture.
5] They also place reliance upon the order of this court
dated 3.7.2012 passed in W.P. No. 5082 of 2012 "Madanrao
Nanasaheb Chavan and others Vs. The State of Maharashtra and
others", to urge that an alternate and efficacious remedy under
Section 267A of the 1961 Act is available to the petitioner. Shri Veer,
in addition, also invited our attention to the judgment of the Pubjab
and Haryana High Court in the matter of "Umrao Singh and others
Vs. Meher Chand and others" reported in AIR 1982 P & H 91, for
{12}
revised 4001.12.odt
very same purpose. Advocate Shri Sangle, for the Chief Executive
Officer, has also prayed for dismissal of the petition.
6] The provisions of filling up the Committees or
constitution appear in Chapter IV of 1961 Act. Section 78 points out
various committees under the Zilla Parishad. Section 79 is about the
constitution of the Standing Committee. Section 79A, is about
constitution of Water Management and Sanitation Committee.
Section 80 is about constitution of Subject Committees. The mode
and manner of selecting councillors on these subject committees is
given in Section 81. Its heading is, "Election of Committees". Sub-
section (1) thereof prohibits a councillor from being elected on more
than one committees and sub-section (3) stipulates that election to
committee is to be held in accordance with the system of proportional
representation by means of single transferable vote. Sub-section 4
then stipulates that if there is any dispute as regards validity of
election of any councillor under Section 79 or Section 80, the
councillor can refer that dispute to Commissioner, whose decision
thereupon is final. Section 82 is then on term of office of such
members of Standing Committees and subject committees. Section 83
deals with Chairmen of subject committees. For 5 subject
committees, 5 chairmen are prescribed. Under Section 1A, the
Collector is obliged to convene a meeting of the Zilla Parishad for
election of such Chairmen, within 15 days, from the first meeting of
the Zilla Parishad under Section 45. This meeting is to be presided
over either by Collector or by an officer not below the rank of Deputy
{13}
revised 4001.12.odt
Collector authorized in writing by Collector. Sub-section (2) is then,
on how the election has to proceed.
7] Entire Section 83 shows that Chairman are required to be
elected, that too, in a meeting presided over either by Collector, or
then, by his authorized representative not below the rank of Deputy
Collector.
8] Admittedly, in present facts, no such meeting & election
has taken place.
ig Meeting dated 2.4.2013 was attended to by
representative of Collector. That meeting does not refer to any
election or then selection of a person as Chairman of any of the
subject committees. There, desire to have elections unopposed is
recorded & powers are given to President to take all members in
confidence for said purpose.
9] Respondents state that election has taken place on
19.4.2012 and said election was unopposed.
10] Perusal of the proceedings show that on 19.4.2012,
meeting was presided over by President of Zilla Parishad and not by
the Collector or his representative. It is, therefore, not a meeting as
contemplated by Section 83(2) of the 1961 Act.
11] The elections to local body must be held in the manner
and mode prescribed by the Statute. Here, that mode and manner has
{14}
revised 4001.12.odt
been violated. The order of this court dated 3.7.2012 in W.P. No.
5082 of 2012 (supra) only records a conclusion that the petitioners
there had an alternate efficacious remedy. However, Section 267A of
the 1961 Act, pointed out to us by the respondents as that remedy, is
not even mentioned & does not figure anywhere in that order. Section
267A, is power of Commissioner to suspend execution of an unlawful
order of Zilla Parishad or Panchayat Samitis. Question, whether said
powers can be used to interdict the election process under Section 83
has not been gone into by that Division Bench. We have already noted
that in so far election of members to various committees is concerned,
dispute is required to be referred to the Divisional Commissioner and
his decision thereafter is made final. Said election, therefore, cannot
be subjected to Section 267A. The election of the Committee
Members are also assailed before us. Judgment of the Division Bench
of the Panjab and Haryana High Court notices that when an alternate
and efficacious remedy is available, the High Court should not
interfere. There, the alternate remedy was in the shape of an election
petition. Even otherwise, it is the settled law that availability of such a
remedy is not an absolute bar & in suitable case, this Court can always
interfere. We find that in present circumstances where election of the
members on various Subject Committees as also the election of
Chairmen over those Committees, both are in dispute, intervention of
this Court is necessary.
12] In 2011 (4) Mh.L.J. 481 - Santosh s/o Murlidharrao
Mahatme Vs. Zilla Parishad, Amravati & ors., while dismissing the
{15}
revised 4001.12.odt
writ petition, the Division Bench of this Court has considered Sections
83(1-A), 83(2), 111(11) of the Maharashtra Zilla Parishads and
Panchayat Samities Act, 1961 to find out powers of Zilla Parishad to
effect change/ modification in allotment of subject committees after
initial elections in the meeting presided over by the Collector.
Petitioner was elected as Chairman of Subject Committee by the
Collector and was placed in-charge of Finance and Works Subject
Committee by the Zilla Parishad. By the impugned notice the meeting
was convened to discuss the subject i.e. change in Subject Committees
and the allocation of Subject Committee so far as petitioner has been
changed by the Zilla Parishad. The Division Bench has held that
changing the allocation of Subject Committee by exercising power u/s
111(11) has nothing to do with the term of office of Chairman of
Subject Committee & Zilla Parishad is competent to effect change in
allocation of Subject Committees before expiry of period of two and
half years by exercising power u/s Section 111 of the Act of 1961. In
paragraph 13, it is held :--
"It is, therefore, evident that the Chairmen of Subject
Committees are elected in the meeting called and
presided over by the Collector as per provisions of sub-
section (1-A) of Section 83. However, it is for the Zilla
Parishad to place them in-charge of such Committee or
Committees as the Parishad may determine. In other
words, Chairmen of Subject Committees are elected in
the meeting presided over by the Collector and allotment
of Subject Committee to such elected Chairmen is
required to be done by the Zilla Parishad. The power
exercised by the Collector under sub-section (1-A) is
restricted only to convene a meeting of Zilla Parishad for
election of Chairmen of Subject Committees, preside over
the same and elect Chairmen of Subject Committees by
{16}
revised 4001.12.odt
following procedure stipulated under sub-sections 2 and
3 of Section 45 of the Act of 1961 whereas allotment of
Subject to Chairmen of such Committees is entirely
within the jurisdiction and domain of Zilla Parishad. The
power, which is exercised by the Zilla Parishad, is
completely distinct and different than the one exercised
by the Collector under sub-section (1-A) of Section 83 of
the Act of 1961. Therefore, the power to elect Chairmen
of Subject Committees by the Collector cannot be
equated with the power exercised by Zilla Parishad for
allocating Subject Committees to such elected Chairmen.
"
13]
2010 (6) Mh.L.J. 370 - 2010 (12) LJSOFT 44- Tulshiram
s/o Timaji Shrirame & anr. Vs. State of Maharashtra & ors.,
another Division Bench looks into Rule 6 of The Maharashtra Zilla
Parishads (President, Vice President and Chairman of Subjects
Committees) and Panchayat Samitis (Chairman and Deputy
Chairman) (Reservation of Offices and Election) Rules, 1962 &
observes :--
" The rule nowhere contemplates holding of election for
allotment of subject committees by secret ballot. On the
contrary, it speaks about voting by show of hands. Since
the process of election is governed by the rules or
statutory provisions, the elections are required to be held
in the manner laid down therein and in no other manner.
The decision of supreme court in AIR 1994 SC 586 -
( Janendrakumar Phoolchand Daftari v. Rajendra
Ramsukh Mishra & ors.), supra, is of no avail to the
petitioners as Rule 10(2) of the Bombay Village
Panchayats Act which fell for consideration in that case
clearly provided that the voting shall take place by show
of hands and in case a single member present in the
meeting demands voting by secret ballot, the voting will
have to be taken by secret ballot. Such is not the case in
{17}
revised 4001.12.odt
hand. In the case in hand the rule does not speak of
allowing secret ballot even if there is demand by a single
member in the meeting for secret ballot. In the absence of
any provision to that effect, we do not think that we
would be justified in adding something in the rules which
does not exist. The judgments cited by the learned
counsel for the petitioner are therefore not applicable to
the facts of the present case. In the result, we do not find
any merit in this writ petition."
14] In Babu Verghese v. Bar Council of Kerala, (1999) 3
SCC 422, in paragraph 31 & 32 , the Hon. Apex Court observes that it
is the basic principle of law long settled that if the manner of doing a
particular act is prescribed under any statute, the act must be done in
that manner or not at all. The origin of this rule is traceable to the
decision in Taylor v. Taylor which was followed by Lord Roche in
Nazir Ahmad v. King Emperor who stated as under: "Where a power
is given to do a certain thing in a certain way, the thing must be done
in that way or not at all." This rule has since been approved by the
Apex Court in "Rao Shiv Bahadur Singh v. State of U.P" and again
in Deep Chand v. State of Rajasthan. These cases were considered by
a three-Judge Bench of Hon. Apex Court in "State of U.P. v. Singhara
Singh" and the rule laid down in Nazir Ahmad case was again upheld.
Hon. Apex Court states that this rule has since been applied to the
exercise of jurisdiction by courts and has also been recognised as a
salutary principle of administrative law. In Babaji Kondaji Garad v.
Nasik Merchants Coop. Bank Ltd., (1984) 2 SCC 50, Hon. Apex
Court in paragraph 12 states that when statute requires a certain thing
to be done in a certain manner, it can be done in that manner alone
unless a contrary indication is to be found in the statute. If the
{18}
revised 4001.12.odt
Legislature uses the expression "if no such persons are elected" it
indubitably suggests that primarily the reserved seats are to be filled
in by election. Failing the election, one can resort to appointment or
co-option. The chronology of the methodology by which seats are to
be filled in as set out in Section 73-B of the Maharashtra Cooperative
Societies Act is found to clearly manifest the legislative intention that
the first and the foremost pride of place is accorded to election. Hon.
Apex Court has held that it ought to be so because a representative
institution ordinarily must be democratically elected.
15] In a democracy, the election to local bodies are
constitutionally recognized & are essential part of Panchayat Raj
system. Precedents mentioned supra show that the importance of
election in the scheme of 1961 Act can not be undermined & can not
be allowed to be defeated or compromised by permitting the same to
be substituted by any other method. We also note that present
Petitioner on 2.4.2012 has specifically posed the question whether law
permits the course being adopted by the Zilla Parishad. The
proceedings dated 2.4.2012 record his question accordingly. Thus
there is no & can not be any estoppel or acquiescence in present
matter & steps must be initiated forthwith to elect the Committee
Members as also Chairman of the respective Committees as per the
mandate of law. In present facts, we find that responsible officers like
respondent No.2 Collector, respondent No.3 Chief Executive Officer
and respondent No.4 Sub Divisional Officer, have avoided to perform
their duties and did not advice the councillors of the Zilla Parishad or
{19}
revised 4001.12.odt
its President properly. It has resulted in violation of provision of
Section 81 as also Section 83 of the 1961 Act.
16] .We, therefore, are not in position to hold that remedy
under Section 267A is alternate and equally efficacious remedy
available to the petitioner in present matter. At this stage, Advocate
Shri Veer points out provision of Section 259 of the 1961 Act.
However, for very same reasons this effort also cannot succeed.
17]
We, therefore, quash and set aside the constitution of the
Subject Committees under Section 81 of the 1961 Act and direct
respondent No.2 to issue fresh notice for convening meeting of the
Zilla Parishad in terms of Section 81 and 83(1)(A) within a period of
3 weeks from today. The election shall be conducted within further
period of two weeks. As the committees already constituted are
functioning without any problem since last more than 18 months, till
the new committees are constituted and their Chairmen are duly
elected, present committees, headed by their Chairmen, shall continue
to function.
18] Petition is thus allowed in terms of prayer clauses (B-1),
(C) and (D), Pending civil applications, if any, stand disposed of.
Rule made absolute accordingly. No costs.
[RAVINDRA V. GHUGE] [B.P. DHARMADHIKARI]
JUDGE JUDGE
grt/
