Bombay High Court
Milind S/O Prabhakar Dhurve vs State Of Maharashtra Through ... on 8 December, 2014
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 927 of 2013
Petitioner : Milind son of Prabhakar Dhurve, aged about
50 years, Agriculture & Business, resident of
Gurunanak Nagar, Godhni Road, Yavatmal
versus
Respondents : 1. State of Maharashtra, through its Secretary,
Planning Department, Mantralaya, Mumbai-32
2. The Collector, Yavatmal
3. The Election Officer for the Elections of
Yavatmal District Planning Committee, Yavatmal
4. Yavati son of Manoharrao Naik, aged Major,
resident of Naik Bungalow, Gandhi Nagar,
Pusad, District Yavatmal
5. Amol son of Shankarrao Rathod, aged Major,
resident of Ambadevi Temple Road, Darwha,
District Yavatmal
6. Rakesh son of Radhalu Nemanwar, aged Major
resident of Akoli, Tahsil Kelapur, District
Yavatmal
::: Downloaded on - 08/12/2014 23:47:30 :::
2
7. Ashish son of Anandrao Kursange, aged Major,
through Chief Executive Officer, Zilla Parishad,
Yavatmal
8. Diwakar son of Dhanu Rathod, aged Major,
resident of Arandi, Tahsil Digras, District
Yavatmal
9. Narendra son of Keshavrao Thakare, aged
igMajor, resident of Kumbha, Tahsil Maregaon,
District Yavatmal
10. Vasanta son of Narayan Pandhare, aged
Major, resident of Dhanki, Tahsil Umarkhed,
District Yavatmal
11. Yogesh son of Shivram Deshmukh Parvekar,
aged Major, resident of Parva, Tahsil Ghatanji,
District Yavatmal
Mr K. S. Narwade, Advocate for petitioner
Mr T. R. Kankale, Assistant Government Pleader for respondents 1 to 3
Mr Firdoz Mirza, Advocate for respondent no. 4
---------
Coram : B. P. Dharmadhikari And
P. R. Bora, JJ
Date of Reserving the Judgment: 30.10.2014
Date of Pronouncing the Judgment: 8th December 2014.
Judgment (Per P. R. Bora, J)
1. In the instant petition, the petitioner has challenged the
constitutionality of rule 16 (3A) of the Maharashtra District Planning
Committee (Election) Rules, 1999 (for short, the "Rules of 1999").
Consequently, he has also prayed for setting aside the order passed by the
Returning Officer (respondent no. 3 herein) on 7 th February 2013
whereby he has rejected the nomination of the petitioner for the post of
Member in the District Planning Committee of Yavatmal District.
Petitioner has also prayed for setting aside order dated 13th February 2013
passed by the Collector, Yavatmal i.e. respondent no. 2 herein whereby he
has confirmed the order dated 7th February 2013 passed by respondent
no. 3. Respondents no. 4 to 11 are the persons who have been declared
elected unopposed on District Planning Committee, Yavatmal.
2. The facts relevant for the purpose of deciding present petition
are thus -
Vide Notification dated 28th January 2013, respondent no. 3
had declared the election to 32 constituencies of the District Planning
Committee, Yavatmal District for electing members from rural areas and
smaller urban areas of Yavatmal District. On 31st January 2013,
respondent no. 3 declared a detailed programme of election. As
provided in rule 3 of the Rules of 1999, the area of the District is to be
divided into the following four constituencies :
(a) Rural Area Constituency,
(b) Transitional Area Constituency,
(c) Smaller Urban Area Constituency, and
(d) Larger Urban Area Constituency.
As per sub-rule (2) of rule 3, the total number of members to be elected
from each constituency is to be determined by the Collector in proportion
to the urban and rural population in the district as a whole and in each
constituency. In so far as present matter is concerned, the election
programme was declared for the candidate to be elected from the rural
area constituency and smaller urban area constituency and the total
number of candidates to be elected was 32. The petitioner had
admittedly submitted his candidature from the rural area constituency. In
rural area constituency, the members elected to the Zilla Parishad of the
said District are the voters and the persons whose names are entered in
the list of voters are eligible to contest the election to the District Planning
Committee subject to the provisions made in rule 16 of the Rules of 1999.
The present petitioner submitted his nomination to be elected
from the general seat though he belongs to reserved class, more
particularly, the Scheduled Tribe. It is the contention of the petitioner
that since no seat was reserved for the Scheduled Tribe, he submitted his
nomination from the general seat. In the scrutiny carried out on 7th
February 2013, the nomination of the petitioner was rejected by
respondent no. 3 for non-compliance of rule 16 (3A) of the Rules of
1999. As is averred in the petition, along with his nomination paper, the
petitioner had submitted certificate from the competent authority to the
effect that he was elected to Zilla Parishad, Yavatmal from the reserved
seat.
Respondent no. 3 while rejecting the nomination of the
petitioner has referred to rule 16 (3A) of the Rules of 1999 and has
recorded a finding that since the petitioner has failed to comply with rule
16 (3A), his nomination is rejected. The petitioner challenged the
rejection of his nomination by preferring appeal under Section 21 of the
Maharashtra District Planning Committee (Constitution And Functions)
Act, 1998 before the Collector, Yavatmal. However, vide order passed on
13th February 2013, the Collector, Yavatmal (respondent no. 2) rejected
the said appeal. Aggrieved thereby, the petitioner has preferred the
present writ petition.
3. Since the petitioner has challenged the constitutionality of
rule 16 (3A) of the Rules of 1999 along with the rejection of his
nomination by the Returning Officer and its confirmation by the Collector,
the petition has been entertained by this Court.
4. Petition was filed on 15.2.2013. Voting, if necessary, was to
take place on 20th February 2013 as per the election programme declared
on 31.1.2013. On 18th February 2013 notice was issued in the present
matter for final disposal and the matter was fixed on 20th February 2013
at 02.30 pm. On 20th February 2013, learned Government Pleader
informed the Court that for eight vacancies, only eight candidates were
left in fray and hence as per the Rules, all of them were declared elected
unopposed. As such, the petitioner subsequently amended his petition
and by way of amendment, added the prayer for quashing and setting
aside election of respondents no. 4 to 11.
5. The petitioner has assailed sub-rule (3A) of rule 16 of the
Rules of 1999 being ultra vires the Constitution. Mr K. S. Narwade,
learned counsel submitted that the candidates belonging to scheduled
caste or scheduled tribe or any other backward class cannot be deprived
from contesting the election for the general seat and no such restriction
can be imposed that the said candidate must have been got elected in
Zilla Parishad elections to a general seat. Learned counsel invited our
attention to rule 55 (4) of the Rules of 1999 which provides that
candidate belonging to any reserved category shall will be eligible to
contest the election to the general seat. Learned counsel submitted that
rule 16 (3A) is in direct conflict with rule 55 (4) of the Rules of 1999.
Learned counsel relied upon the decision of the Honourable Apex Court
in the case of Bihari Lal Rada v. Anil Jain (Tinu) & ors reported in
(2009) 4 SCC 1 to substantiate his contention. Learned counsel invited
our attention to the observations made in paragraphs 23, 32 and 43 of
the aforesaid judgment.
6. Mr Kankale, learned Assistant Government Pleader appearing
for respondents no. 1 to 3 had sought time to assist the Court stating that
he intends to study the judgment relied upon by petitioner and wishes to
bring to the notice of the Court certain other judgments to substantiate
the contentions of respondents no. 1 to 3 as set out in Return. Since
controversy involved was limited to the extent of deciding validity of rule
16 (3A) of the Rules of 1999 and available material was sufficient for the
purpose, we rejected the request so made and proceeded with the matter.
Learned Assistant Government Pleader relied upon the submissions made
in the Return submitted on behalf of respondents no. 1 to 3 on 15 th July
2013.
7. We have carefully considered the submissions made on
behalf of petitioner and contentions raised by respondents in their Return.
8. Rule 16 (3A) of the Rules of 1999 constitutionality of which
is challenged in the present writ petition, reads thus :
"(3A) If a person belonging to a reserved category has been
elected from the general category, and if such person submits
a certificate of general category from the Competent
Authority at the time of presenting a nomination, then the
nomination paper of such person shall be treated as valid for
the general category."
9. The aforesaid sub-rule though thus permits a person
belonging to reserved category to contest the election for a general seat, it
impliedly disqualifies the person belonging to reserved category from
contesting the election to a general seat if the said person has been
elected in the respective body from the reserved seat. Is such a provision
necessary ? The aforesaid rule tested on the anvil of the Constitutional
provisions and the law laid down by the Honourable Apex Court in the
case of Kasambhai F. Ghanchi v. Chandubhai D. Rajput reported in
(1998) 1 SCC 285 and subsequently relied and crystallized in the case of
Bihari Lal Rada' (supra), we find the same to be not in consonance with
the Constitutional provisions as well as the law laid down by the
Honourable Apex Court in the cases cited supra.
10. As has been held by the Honourable Apex Court in the cases
of Kasambhai F. Ghanchi and Bihari Lal Rada, the unreserved seat,
euphemistically described as general category seat or open seat is
available for all candidates irrespective of their caste who are otherwise
qualified to contest to that office. As has been clarified by the Honourable
Apex Court, there is no separate category like general category. The
expression "belonging to the general category" wherever employed,
means the seats or offices earmarked for persons belonging to all
categories irrespective of their caste, class or community or tribe. It is
thus evident that the candidate belonging to a reserved class cannot be
disqualified and deprived from contesting the election to the general seat.
As has been said by the Honourable Apex Court in Bihari Lal Rada
(supra) there can never be any Constitutional or legal objection if more
members from weaker section get elected to the public body on their own
merit from the seats meant for unreserved category.
11. "Whether any Act or Rule can curtail and put an embargo
on the right of the municipal councillor elected from the reserved ward to
contest the election to the office of President of Municipal Council if by
virtue of roaster, such office is notified to be filled in by a member
belonging to the general category" was the question for determination
before the Honourable Apex Court in case of Bihari Lal Rada. In the said
case, appellant before the Honourable Supreme Court who was belonging
to reserved class, was elected on the post of President of Municipal
Council, Hissar though at the relevant time, according to the roaster, the
post of President of the said Municipal Council was notified to be filled in
by a member belonging to the general category. Election of the appellant
was challenged in a writ petition seeking writ of certiorari to quash the
proceedings whereunder appellant was declared to have been duly
elected as President of Hisar Municipal Council. Learned single Judge of
the High Court of Haryana, dismissed the writ petition and upheld the
election of the appellant as President of the Municipal Council. In appeal
preferred by respondent, the Division Bench set aside the judgment of the
learned single Judge and quashed the election of appellant as President of
the Municipal Council. The matter was then taken to the Honourable
Apex Court and the Honourable Apex Court set aside the order passed by
the Division Bench and upheld the decision of the learned single Judge,
thereby upholding the election of the appellant as President of said
Municipal Council. We find it expedient to reproduce herein, the
conclusions recorded by the Honourable Apex Court in the aforesaid
judgment, which are thus :-
"40. Be that as it may, neither Article 243-T of the Constitution
nor Section 10 (5) of the Haryana Municipal Act provide for any
reservation to the office of the President in favour of any
candidate who does not belong to Scheduled Caste or Backward
Class. Obviously there cannot be any such reservation of seats
in municipalities nor to the office of Chairperson in favour of
candidates belonging to general category. There is no separate
category like general category. The expression "belonging to the
general category" wherever employed means the seats or offices
earmarked for persons belonging to all categories irrespective of
their caste, class or community or tribe. The unreserved seats
euphemistically described as general category seats are open
seats available for all candidates who are otherwise qualified to
contest to that office.
41. The word "general" is derived from Latin word genus.
"...... It relates to the whole kind, class, or order..... Pertaining to
or designating the genus or class, as distinguished from that
which characterises the species or individual; universal, not
particularised, as opposed to special; principal or central, as
opposed to local; open or available to all, as opposed to select;
obtaining commonly, or recognised universally, as opposed to
particular; universal or unbounded, as opposed to limited;
comprehending the whole or directed to the whole, as
distinguished from anything applying to or designed for a
portion only. Extensive or common to many." (See Black's Law
Dictionary, 6th Edn.)
42. There is nothing in the provisions of the 1973 Act
suggesting that in case the office of the President of a
municipality is required to be filled in from the members
belonging to the general category then only a member who has
been elected as such from an unreserved ward alone can stand
for election. There is nothing in law that a person belonging to
Backward Class who got himself elected from a ward reserved
for that class is debarred from contesting the election to the
office of President/Chairperson when that office is not reserved
and meant to be filled in from the members belonging to the
general category.
43. In our view, wherever the office of the President of a
municipality is required to be filled in by a member belonging to
Scheduled Caste, Scheduled Tribe or Backward Class as the case
may be, it would be enough if one belongs to one of those
categories irrespective of the fact whether they have been
elected from a general word or a reserved ward. Likewise, the
office of the President of a municipality if not reserved or meant
for general category, all the candidates irrespective of their
caste, class or community and irrespective of the fact whether
they have been elected from a reserved ward or a general ward
are entitled to seek election and contest to the office of the
President of the municipality."
12.
In the instant case, there is no dispute that the petitioner has
been elected to Zilla Parishad, Yavatmal from a reserved seat. There is
further no dispute that the petitioner had filed his nomination to be
elected as member in the District Planning Committee, Yavatmal from the
general seat and by the impugned order, his nomination paper was
rejected for the reason that he did not produce a certificate from the
Competent Authority at the time of presenting his nomination showing
that in the respective body i.e. Zilla Parishad, Yavatmal he was elected to a
general seat. In view of the observations reproduced hereinabove from
the judgment of the Honourable Apex Court and in view of the law laid
down by the Apex Court in the aforesaid judgment, the impugned
decision rejecting nomination of the petitioner apparently cannot sustain
and is liable to be set aside. Since rule 16 (3A) of the Rules of 1999
violates the Constitutional mandate, the same is also liable to be struck
down. We also agree with the contention raised by the petitioner that
rule 16 (3A) of the Rules of 1999 is in direct conflict with and contrary to
rule 55 (4) of the said Rules. As has been stated earlier, rule 55 (4)
provides that a candidate belonging to any reserved category shall be
eligible to contest the election to a general seat. This rule, in fact, lays
down correct position of law which has been explained by the Apex Court
in the case of Bihari Lal Rada (supra).
13. In view of the discussion made hereinabove, in so far as the
elections to the District Planning Committee as per Rules of 1999 are
concerned, the correct legal position may be stated as below
(i) election to the reserved seat can be contested by a candidate
belonging to the reserved category for which the seat is reserved
irrespective of the fact whether the said candidate has been elected to the
respective body from a general seat or the reserved seat.
(ii) along with the candidates belonging to open category, the
open seat can also be contested by a candidate belonging to reserved class
irrespective of the fact whether the said candidate is elected to the
respective body from a reserved seat or a general seat.
Before parting with the judgment, we wish to note that
though the validity of sub-rule (3) of Rule 16 of the Rules of 1999 has not
been challenged in the present petition, in view of the discussion made by
us hereinbefore and considering the law laid down by the Apex Court in
the judgments cited supra it has to be stated that rule 16 (3) is liable to
be read down. The restriction imposed vide the said sub-rule that the
candidate desiring to contest the election to the reserved seat in District
Planning Committee must have been elected from the reserved seat in the
respective body impliedly disqualifies a candidate got elected from
general seat in the respective body though he may be belonging to the
reserved class. Restriction so imposed is unconstitutional. For making a
candidate eligible to contest an open seat in District Planning Committee,
it is absolutely unnecessary and irrelevant to require the said candidate to
produce the certificate from the competent authority certifying from
which seat, whether reserved or general, the candidate is elected to the
respective body. Constitutional mandate is clear that a candidate
undisputedly belonging to reserved class cannot be disqualified to contest
any further election to an unreserved or general or a reserved seat on the
ground that in the respective body he has been elected from a general
seat. This controversy has been dealt with by the Hon'ble Apex Court in
Bihari Lal Rada's case (supra) .and now the law stands settled that any
seat to be filled in by a member belonging to scheduled caste, scheduled
tribe or Backward Class as the case may be it would be enough if one
belongs to the said reserved category for which the seat is reserved
irrespective of the fact whether he has been elected from a general seat or
reserved seat.
14. Since we have struck down rule 16 (3A) of the Rules of 1999
being unnecessary and unsustainable and have also quashed order dated
7.12.2013 passed by respondent no. 3 and order dated 13.2.2013 passed
by respondent no. 2, the petitioner has become entitled to contest the
election to a general seat on the District Planning Committee, Yavatmal.
In the circumstances, though respondents no. 4 to 11 have been declared
elected unopposed, the said election will have to be set aside.
15. In the result, following order is passed :
(i) Writ Petition is allowed.
(ii) It is declared that rule 16 (3A) of the Maharashtra District
Planning Committee (Election) Rules, 1999 is ultra vires the Constitution
of India and hence, the same is struck down.
(iii) Order dated 7.2.2013 passed by respondent no. 3 and order
dated 13.2.2013 passed by respondent no. 2 are quashed and set aside.
(iv) The election of respondents no. 4 to 11 is set aside.
(v) Respondent no. 3 may re-schedule the programme of
election for vacant seats in the Rural Area Constituency of the District
Planning Committee, Yavatmal.
(v) Rule made absolute accordingly. No costs.
P. R. BORA, J B. P. DHARMADHIKARI, J
joshi
