Bombay High Court
Shilpa Dinesh Pardeshi vs The State Of Maharashtra And ... on 2 December, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10941 OF 2016
Shilpa w/o Dinesh Pardeshi,
Age: 41 years, occ: social work/household,
R/o Depo Road, Navjeevan Colony,
Vaijapur, Tq. Vaijapur,
District Aurangabad Petitioner
Versus
1 The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai
2 The State Election Commission,
Annex Building, In front of Mantralaya,
Mumbai,
through Its Deputy Secretary,
3 The Collector, Aurangabad
District Aurangabad
4 The Municipal Council,
Vaijapur, Tq. Vaijapur,
District Aurangabad,
through its Chief Executive Officer Respondents
And
Raafe Hasan s/o Ali Hasan,
age: 36 years, Occ: Legal Practitioner,
R/o Peerzad Lane, Post: Vaijapur,
Tq.Vaijapur, District Aurangabad. Intervener
Mr.R.N. Dhorde, Senior Counsel i/by Mr. V.R. Dhorde, advocate for
the petitioner
Mr. Rajendra S. Deshmukh, Special Counsel with Mr. S.B.
Yawalkar, AGP for Respondents No.1 & 3.
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Mr. S.T. Shelke advocate for Respondent No.2
Mr. N.D. Sonawane advocate for respondent No.4
Mr. V.J. Dixit Senior Counsel i/by Mr.Sushant V. Dixit, advocate for
intervener
CORAM : R.M. BORDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON: 24th November, 2016
PRONOUNCED ON: 02nd December, 2016.
ORAL JUDGMENT (Per R.M.Borde, J.):
Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 The Constitution Bench of the Supreme Court, in the
matter of Mohindar Singh Gill Vs. Chief Election Commissioner
of New Delhi, 1978 SCC 405, has referred to pervasive
philosophy of the democratic elections which Sir Winston Churchil
vivified in matchless words:-
" At the bottom of all tributes paid to democracy is the
little man, walking into a little booth, with a little
pencil, making a little cross on a little bit of paper -
no amount off rhetoric or voluminous discussion can
possibly diminish the overwhelming importance of the
point.
If we may add, the little large Indian shall not be
hijacked from the course of free and fair elections by
mob muscle methods, or subtle perversion of
discretion by mean 'dressed in little, brief authority'.
For 'be you ever so The moral may be stated with
telling terseness in the words of William Pitt: "Where
laws end, tyranny begins". Embracing both these
mandates and emphasizing their combined effect is
the elemental law and politics of Power best expressed
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by Benjamin Disraeli (Vivian Grey, BK VI Ch 7):
I repeat . . . that all power is a trust that we are
accountable for its exercise - that, from the people
and for the people, all springs, and all must exist".
26 Further, the Court in (para 23) observed thus:
"Democracy is government by the people. It is a
continual participative operation, not a cataclysmic,
periodic exercise. The little man, in his multitude,
marking his vote at the poll does a social audit of his
Parliament plus political choice of this proxy.
Although the full flower of participative Government
rarely blossoms, the minimum credential of popular
government is appeal to the people after every term
for a renewal of confidence. So we have adult
franchise and general elections as constitutional
compulsions. "The right of election is the very essence
of the constitution (Junius). It needs little argument
to hold that the heart of the Parliamentary system is
free and fair elections periodically held, based on
adult franchise, although social and economic
democracy may demand much more. "
3 The provisions relating to conduct and control of
elections to Panchayat and Municipalities, grass root level
institutions of democracy, find place in parts IX and IX-A
respectively of the Constitution of India. The power of
superintendence, direction and control for preparation of electoral
rolls for, and conduct of, all the elections to Panchayats as well as
the Municipalities vest in the State Election Commission
consisting of State Election Commissioner to be appointed by the
Governor in view of Article 243-K of the Constitution of India.
Clause (4) of Article 243-K of the Constitution of India provides
that subject to the provisions of this constitution, Legislature of a
State may, by law, make provisions with respect to all the matters
relating to, or in connection with, elections to Panchayats. Article
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243-ZA which relates to election to Municipalities refers to article
243-K. In the matter of A.C. Jose Vs Siven Pillai and others,
AIR 1984 SC 921, in para No.25 it is observed thus :
"25 To sum up, therefore, the legal and
constitutional position as regards conduct of
elections is as follows:
(a) when there is no Parliamentary legislation
or rule made under the said legislation, the
Commission is free to pass any orders in
respect of the conduct of elections.
(b)
where there is an Act and express Rules
made thereunder, it is not open to the
Commission to override the Act or the Rules
and pass orders in direct disobedience to the
mandate contained in the Act or the Rules. In
other words, the powers of the Commission are
meant to supplement rather than supplant the
law (both statute and Rules) in the matter of
superintendence, direction and control as
provided by Art. 324.
(c) where the Act or the Rules are silent, the
Commission has no doubt plenary powers
under Art. 324 to give any direction in respect
of the conduct of election. "
4 It is thus clear that in the absence of legislation, the
Commission is free to pass orders in respect of conduct of elections
and wherever there is an Act and express Rules made thereunder,
it is not open for the Commission to override the Act and Rules and
pass orders and issue directions in disobedience of mandate of the
Act and Rules.
5 There cannot be a duel opinion as regards the
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preposition that in terms of article 243-ZG of the Constitution,
there is an absolute and complete bar for the Courts in considering
any matter relating to the municipal elections of any kind
whatsoever after the publication of the notification for holding
municipal elections. The bar imposed by article 243-ZG is two fold.
(a) The validity of any law relating to the delimitation of
Constituencies or the allotment of seats to such constituencies,
made or purporting to be made under article 243-ZA shall not be
called in question in any Court of law; and (b) No election to any
Municipality shall be called in question except by an election
petition presented to such authority and in such manner as is
provided for by or under any law made by the Legislature of a
State. Moreover, it is well settled by now that if the election is
imminent or well underway, the Court should not intervene to stop
the election process. If it is allowed to be so, no election will ever
take place because someone or the other will always find some
excuse to move the Court and stall the election process. In the
matter of Anugraha Narain Singh Vs. State of UP and others,
1997 1 Mah. L.J. 132 = 1996, 6 SCC 303, the Supreme court
quashed interim orders passed by the High Court and observed
that if the election is imminent or well underway, the Court should
not interfere to stop the election process. If this is allowed to be
done, no election will ever take place because someone or the other
will always find some excuse to move the Court and stall the
elections. The importance of holding elections at regular intervals
cannot be over-emphasized. If holding of elections is allowed to stall
on the complaint of a few individuals, then grave injustice will be
done to crores of other voters who have a right to elect their
representatives to the democratic bodies.
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6 It, thus, will have to be concluded that so far as the
matters relating to superintendence, direction and control for the
preparation of electoral rolls and conduct of elections of the
Municipalities are concerned, the power vest in State Election
Commission and that the Legislature of the State may by law,
make provisions with respect to all the matters relating to or in
connection with the elections of the Municipalities. It is also clear
that if there is any law made by the State Legislature in place, the
State shall have to abide by such law and issue direction within
the frame work of law and in no case, direction can be issued in
disregard to law framed by the Legislature. There are constraints
on the power exercisable by the Court for causing interference in
the election matters. At the same time, it has to be ensured that
the Government acts in consonance with the law framed by the
Legislature relating to conduct of election of the municipalities and
does not violate the provisions of such law. At the same time,
where the State Election Commission has stepped-in and issued
directions in respect of elections to municipalities, it would also not
be open for the Government to cause interference in the electoral
matters and issue directions contrary to the provisions of law made
by the Legislature. Issuance of such directions, contrary to law
made by the State Legislature, even after Election Commission has
assumed the power of superintendence and control over election,
shall have to be construed as the interference by the State
Government in the election which is imminent, although in strict
sense of terms, the Notification for election has not been issued, as
stipulated under form No.I appended to Maharashtra
Municipalities (Direct election to the post of President) Rules, 2016.
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("The Election Rules of 2016" for short).
7 In the instant matter, the petitioner, who is a resident
of Vaijapur, Tq. Vijapur and held the office as councillor as well as
the President in the past, is raising challenge to the
communication issued by the State Government on 28.10.2016 to
the State Election Commission, whereby the reservation for the
post of President, which was prescribed by draw of lots conducted
in consonance with the provisions of the Election Rules, 2016, in
favour of "open women category", has been changed and the office
of the President of the Municipal Council has been prescribed for
"General category".
8 The last election to the Municipal council Vaijapur was
held in December, 2014 and the elections to Municipalities are due
in December, 2016. The State of Maharashtra has issued an
ordinance No.IX of 2016 with a view to amend the Maharashtra
Municipal Corporation Act and Maharashtra Municipalities, Nagar
Panchayat and Industrial Township Act, 1965. By virtue of section
6 of the amending Act, Section 51A-1A has been inserted,
providing for direct elections to the President. In section 52 of the
Municipalities Act sub-section (2) has been inserted, providing that
the term of the office of the President elected under sub-section (1)
of section 51(1)(A) shall be five years and shall be co-terminus with
the term of the council. The Election Rules of 2016 framed and
published in the Official Gazette on 4.10.2016 also provide, apart
from other matters relating to conduct of election of the President,
for reservation of office of the President and procedure for
allotment of reserved seats of different municipal councils.
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9 It is the contention of the petitioner that in view of
Rule 3 of the Election Rules of 2016, a draw of lots for fixing
reservation of the offices of Presidents of the Municipal Councils
in the State of Maharashtra were held on 5.10.2016. It is
contended that total 233 posts in the State of Maharashtra were
put to draw. Out of 233 posts, after prescribing reservation for
reserved categories i.e. SC, ST and OBC, 119 posts remained. Out
of such 119 posts, not less than 50% of the posts i.e. 65 are
required to be kept reserved for open women category and 64 posts
for open general category. Accordingly, the draw was conducted
and so far as the post of President of the Municipal Council
Vaijapur is concerned, it came to be reserved for open (women)
category. Result of the draw was published in various news papers.
A communication was also sent to the State Election Commission
by the State Government, informing result of the draw and
prescription of reservation for various categories. The State
Government, however, informed to the State Election Commission
on 28.10.2016 to the effect that the draw for prescribing
reservation for the post of President was conducted under
chairmanship of Minister of State - Urban Development
Department on 5.10.2016 at Mantralaya, Mumbai and the list
prescribing the reservation for the post of President for various
categories has been forwarded to the State Election Commission
under the covering letter dated 7.10.2016. It was thereafter noticed
by the State Government that there is repetition of the reservation
for the post of President of Vaijapur Municipal council in favour of
open (women) category and as such, decision has been taken by
the State Government to prescribe the post of President of Vaijapur
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Municipal council for open category instead of open (women)
category.
10 The petitioner contends that the change, that has been
brought about in the reservation prescribed for the post of
President of Vaijapur Municipal Council, is violative of the
provisions of the Rules framed by the State Government. It is
further contended that, it was not open for the State Government
to take such decision unilaterally, after results of the draw were
declared on 5.10.2016 regarding prescription of the reservation for
the post of President and much after the State Election
Commission issued direction relating to conduct of election within
contemplation of Rule 6 of the Election Rules, 2016. It is also
contended that it was not open for the State Government to cause
interference in the process of election which is imminent.
11 The writ petition was presented on 25.10.2016 and this
Court, by order dated 27.10.2016, granted time and adjourned the
matter by one week at the request of the State Government with
liberty to the petitioner to move before the Vacation Judge. On
03.11.2016, when the matter was moved before the learned
Vacation Judge, the Court granted leave to the petitioner to amend
the petition and at the request of the Government, with a view to
facilitate presentation of the reply, adjourned the matter to
8.11.2016. On the adjourned date i.e. 8.11.2016, when the matter
was called out before the learned Vacation Judge, the Assistant
Government Pleader, appearing for the State, again sought
adjournment. It was pointed out by the petitioner that the election
programme would be declared on 15.11.2016. The learned Vacation
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Judge, considering contentions of the petitioner and noticing the
illegalities in the matter of prescription of reservation and undue
interference by the State Government in the election process,
directed the Collector not to declare the programme of the election
for electing President of Municipal Council, Vaijapur. The matter
has been placed before us on reopening of Courts after Vacation;
and we have heard learned Counsel appearing for respective
parties.
12 An affidavit in reply has been presented on behalf of
the State by the District Administrative Officer, Aurangabad.
Respondent-State has questioned the locus standi of the petitioner
to present the petition. It is contended that, since the post of
President is prescribed for open category, the petitioner, who is a
woman, can very well contest for the post of President from the
open category. It is contended that the reservation policy cannot be
used as a tool for choosing the opponent from any one category. It
is the stand taken by the State Government that the office of the
President of the Municipal Council must be reserved in accordance
with the Maharashtra Municipal Councils, Nagar Panchayats
(President Election) Rules, 1981 (for short, "Rules of 1981"). It is
contended that the Office of the President of the Municipal Council
shall be allotted by rotation to different Municipal Councils and
Nagar Panchayats in the State in view of Rule 2-A(b)(ii)(b). It is
contended that the policy of reservation has been introduced with
a view to avoid reservation in perpetuity. The Office of the
President, Municipal Council, Vaijapur was earlier prescribed in
favour of open (women) category. It was a just decision of the State
to allot the office of the President in favour of open ( category in
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view of prescription of rotation of seats. It is contended that the
arguments advanced by the petitioner that the only mode
prescribed for reservation of the seat of the President is by draw of
lots and no other mode is permissible, for bringing about change or
correction, is incorrect. It is contended that there is no rule
governing the rectification of mistake. However, section 21 of the
Maharashtra General Clauses Act, 1904 mandates that where a
power to issue notifications, orders, rules or bylaws is conferred by
a State Act, then that power includes a power, exercisable in the
like manner and subject to the like sanction and condition (if any)
to add, to amend, vary or rescind any notification, orders, rules or
bylaws so issued.
13 It is contended that since the office of President of
Municipal Council, Vaijapur was prescribed for open (women)
category, during the previous term and since there was repetition
of reservation for the said category, taking into consideration
provisions of Rules of 2016 and with the approval of the
Government, change has been brought about in the prescription of
reservation for the post of President of Municipal Council, Vaijapur
from open (women) category to general category. It is further
contended that after the draw of lots prescribing reservation in
view of Rule 2-A(b)(ii)(b)(iii), since the Office of the President so
reserved and allotted was not notified in the Official Gazette and
the change is effected prior to such publication of the Notification
in the Official Gazette, it was permissible for the State Government
to step in and correct the mistake. It is contended that after
rectification of the mistake, the reservation and allotment of the
seat has been notified in the Official Gazette. It is contended on
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behalf of the State that in view of the bar contained in Article 243-
ZG, it is impermissible for this Court to cause interference in the
electoral matters.
14 Shri Dixit, learned Senior Counsel appearing for the
intervener, has also reiterated the same defence and has also
questioned the locus standi of the petitioner.
15 By virtue of section 6 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships (Amended
Ordinance), 2016 after section 51 of Municipal Councils Act,
section 51A-1A is substituted which reads as under:-
51A-1A. (1) After the date of commencement of the
Maharashtra Municipal Corporations and the
Maharashtra Municipal Councils, Panchayats and
Industrial Townships (Amendment) Ordinance, 2016,
in respect of the general elections to the Council,
subject to the provisions of section 51-1A, every
Council shall have a President who shall be elected by
the persons whose names are included in the
municipal voters list prepared under section 11.
(2) Every person qualified to be elected as a
Councillor under section 15 shall be qualified to be
elected as a President at an election.
(3) Election of the President shall be held
simultaneously with the general elections of the
Council and the procedure regarding holding of
elections to the Council shall, mutatis mutandis, apply
to such election.
(4) If at an election, no President is elected, a fresh
election shall be held to elect a President, and if there
is a failure to elect a President at the fresh election,
such vacancy may, notwithstanding anything
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contained in this Act, be filled by election by the
elected Councillors from amongst themselves.
(5) Any person elected under sub-section ( 4) or (7)
shall be deemed to be duly elected at an election
under this section.
(6) If, in the election of the President, there is an
equality of votes, the result of the election shall be
decided by lots to be drawn by the State Election
Commissioner or the officer appointed by him for the
purpose.
(7) If, during the term of the elected Councillors, there
is a vacancy in the office of the President due to any
reason, the same procedure as provided in sub-
sections (1) to (6) shall apply and such President shall
remain in office only for the remainder of the term, for
which his predecessor would have remained in office
but for such casual vacancy :
Provided that, if a vacancy occurs, which is within six
months prior to the date on which the term of office
of the elected Councillors expires, the same shall be
filled in by election from amongst the elected
Councillors.
(8 ) in case of a dispute regarding election of the
President, the provisions of section 21 shall, mutatis
mutandis, apply.
(9) The Collector shall convene first general meeting of
the Council within twenty-five days from the date on
which the name of the President and the elected
Councillors is published in the Official Gazette after
the general election of the Council and the President.
The nomination of the Councillors under clause (b) of
sub-section (1) of section 9 shall be made in the
prescribed manner in this meeting.
16 The term of the office of the President elected under
sub-section 1 of section 51A-1A has been prescribed as five years
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and the same shall be co-terminus with the term of the municipal
council in view of section 52(2) of the Act as incorporated by the
amendment Ordinance. The Election Rules of 2016 have been
framed in exercise of powers conferred under sub-section (2) of
section 321 read with sub-section (1) and clauses (b), (c), (d), (e), (f),
(g), (h), (i), (j), (k), (l), (m), (n), (o), (p) and (q) of sub-section (2) of
section 17 and section 51A-1A of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965.
Rule 2(d) defines "Directly Elected President" means the President
who is elected under section 51A-1A. Rule 2(e) defines "election" to
mean election of President under section 51A-1A. Rule 3 relates to
Reservation of offices of President and the procedure for allotting
the reserved seats of different Municipal Councils, which reads
thus:
3. Reservation of Offices of President and procedure for
allotting the reserved seats of different Municipal
Councils -
(1) The State Government shall, by order published in the
Official Gazette, reserve the Offices of the President
of Municipal Councils in the State for candidates
belonging to the Scheduled Castes, Scheduled Tribes,
Backward Class of Citizens and Women. While
determining the number of offices to be so reserved:-
(i) the number of offices to be reserved for the
candidates belonging to the Scheduled Castes and
Scheduled Tribes shall bear; as nearly, as may be,
the same proportion to the total number of offices
to be filled in the State, as the population of the
Scheduled Castes or Scheduled Tribes, as the
case may be in the Municipal Councils of the
State bears to the total population in the
Municipal Councils of the State and such offices
may be allotted by rotation to different Municipal
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Councils in the State
Explanation :- While calculating the number of Offices,
the fraction of one-half or more shall be counted as
one-and the fraction of less than one-half, shall be
ignored;
(ii) twenty-seven per cent of the offices shall be
reserved for the candidates belonging to the
Backward Class of citizens and such offices may
be allotted by rotation to different Municipal
Councils in the State;
(iii) not less than one-half of the total number of
offices reserved under clauses (i) and (ii) for
woman candidates belonging to the Scheduled
Castes, Scheduled Tribes or as the case may be,
Backward Class or Citizens; and
(iv) not less than one-half (including the number of
offices reserved for women belonging to the
Scheduled Castes, Scheduled Tribes and the
Backward Class of Citizens) of the total number of
Offices to be filled in the State shall be reserved
for women candidates; and such offices may be
allotted by rotation to different Municipal Councils
in the State. In determining such figure, a fraction
shall be taken into consideration so as to ensure
that not less than one-third of the total number of
offices of Presidents are reserved for the above
categories are reserved for women.
(2) The procedure for allotting reserved seats to
different Municipal Councils shall be as follows:-
(i) While allotting the offices of the President, for
persons belonging to the Scheduled Castes,
Scheduled Tribes and the Backward d Class of
citizen (including women belonging to the said
categories) the offices of the Presidents, reserved
for any of the said categories in the immediately
preceding term, shall be excluded.
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(ii) Subject to provisions of clause (i), -
(a) the reservation of Offices of Presidents for
candidates belonging to the Scheduled
Castes and Scheduled Tribes in the
Municipal Councils shall be made with
reference to the largest percentage of
population of the said categories in the
Municipal Councils to the total population
of such Municipal Councils, in the
descending order:
Provided that, in case where the name of
any Municipal Council appears in both the
categories that is to say, the Scheduled
ig Castes and the Scheduled Tribes, the
reservation of the Office of the President for
such Municipal Council shall be decided on
the basis of higher percentage of the
population belonging to either of the said
categories and in such case, the next
Municipal Council, in that order shall be
reserved for the category:
Provided also that in case where the
percentage of both the categories is equal,
the reservation of such offices shall be
decided by drawing lots;
(b) offices reserved for Backward Class of
citizens and women shall be allotted by
drawing lots and offices may be allotted by
rotation to different Municipal Councils in
the State.
(iii) The offices of the Presidents so reserved and
allotted shall be notified in the Official Gazette.
17 Rule 6 relates to Powers of State Election Commission
to appoint and deploy the staff of Council which reads thus:-
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6 Powers of state Election Commissioner to
appoint and deploy the staff of Council.
The State Election Commissioner shall have the power
to appoint or deploy the officers and members of the
staff of Council for conduct of election and other
matters relating thereto. Such officers and members
of staff shall function under the superintendence,
direction and control of the State Election
Commissioner. "
18 Fixation of various stages of election is, as prescribed
under Rule 7. Sub-rule (1) of Rule 7 provides that for the purpose
of holding a general election, the State Election Commissioner or
the officer authorized by the State Election Commission, shall, as
occasion may require, by order in Form I appoint or re-appoint,
dates, time and place for all or any of the stages of the election.
19 It is the admitted position that there are total 233
seats of the President of Municipal Councils for which the elections
are conducted. In view of sub-rule (1)(i) of Rule 3 of the Election
Rules of 2016, the number of offices to be reserved for the
candidates belonging to SC and ST are prescribed as 31 and 10
respectively and further in view of sub-rule (ii) of Rule 3, twenty-
seven per cent of the offices prescribed for backward classes of
citizens are 63. Sub-rule (1) (iv) of Rule 3 prescribed that not less
than one-half posts including the number of offices reserved for
women belonging to SC and ST and backward classes of citizens
out of the total number of offices to be filled in the State i.e. 65,
shall be reserved for women candidates and such offices may be
allotted by rotation to different municipal councils in the State. It is
further prescribed that in determining such figure, a fraction shall
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be taken into consideration so as to ensure that not less than one-
third of the total number of offices of President reserved for the
above categories are reserved for women.
20 In view of aforesaid Rules, 16 offices of the President
are prescribed for women belonging to SC category out of total 31
offices for the aforesaid category whereas, five offices of the
Presidents are prescribed for women belonging to ST category out
of total 10 offices, whereas 31 offices of the President are
prescribed for OBC women category out of total 63 offices. Out of
total 233 offices of the President in the State, total 129 are
prescribed for general category including women. There are 52
offices of the President prescribed for women belonging to reserved
category i.e. women belonging to SC, ST or backward classes of
citizens. Reservation for women out of total number of offices shall
be not less than 50% including the reservation of offices of women
belonging to reserved categories. Thus, the number of offices
prescribed for women general category were 65, whereas 64 offices
were prescribed for general category. The offices of President,
reserved for backward classes of citizens and women are allotted by
drawing lots in view of sub-rule 2(b) of Rule 3 of the Rules of 2016.
During the draw of lots conducted on 5.10.2016, 65 offices of the
President were prescribed for women belonging to open category,
whereas 64 offices of the President were prescribed for open
category.
21 The office of President, Municipal Council Vaijapur
was allotted by drawing lots in favour of open women category. The
State Government, however has intervened in the matter and
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communicated to the State Election Commission on 20.10.2016
that the Office of the President, Vaijapur Municipal Council shall
be available for open category instead of open-women category. The
decision has been taken by the State Government of its own after
draw of lots as prescribed under sub rule (2)(b) of rule 3 of the
Election Rules, 2016 was already conducted. Apart from deviation
from the procedure, while changing the reservation, the decision is
rendered in breach of sub-rule (1)(iv) of Rule 3 of the Rules of 2016
framed by the State. It is prescribed that not less than one-half of
the total number of offices available in the State shall be reserved
for women candidates. The total offices of the President available in
the State are 233; whereas in view of prescription of sub-rule (1)(iv)
of Rule 3, at least 117 offices ought to have been reserved for
women category. The decision of the State Government in
prescribing the Office of President, Municipal Council for open
category instead of open - women category has led to curtailing
one seat prescribed for woman category which makes the total
seats available in the State for women category to 116 which is less
than one half of the total number of offices to be filled in the State.
The decision of taking away office of President of Vaijapur
Municipal Council, out of reservation prescribed for open - women
category and prescribing the said office for open category, has led
to breach of sub-rule (1)(iv) of Rule 3 of the Rules of 2016 framed
by the State Government.
22 It is contended by the petitioner that since a procedure
has been prescribed for allotment of offices for backward classes of
citizen and women by way of draw of lots, it was not permissible
for the State Government to deviate from that procedure and
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prescribe the office of the President of Municipal Council, Vaijapur
for open category instead of open (women) category after draw of
lots. Any change, if at all that was required, shall have to be made
in observance of the provisions of sub-rule (2)(b) of Rule 3 of the
Rules, of 2016.
23 It is the contention of the respondents that
Maharashtra Municipal Councils And Nagar Panchayats (President
Election) Rules, 1981 shall apply and in view of rule 2(A)(b) (ii)(b)
of the Rules, 1981, the offices of President reserved for Backward
Class of citizens and women shall be allotted by drawing lots and
offices may be allotted by rotation to different Municipal Councils.
The contention of the respondents that Rules framed in the year
1981 shall apply for prescription of reservation to the office of the
President, Municipal Councils is devoid of substance.
In this context, reliance is placed by the petitioner on
the judgment in the matter of Randhirsingh s/o
Govardhansingh Bhadoriya Vs State of Maharashtra, 2002 (4)
Mah.L.J. 531. The issue, in that matter, was as to whether earlier
arrangement of reservation, after promulgation of ordinance dated
7.9.2001 prescribing direct elections to the President of Municipal
Council would survive so far as the reservation of the seats is
concerned. The Court adopted a view that since the Legislature
has power to bring ordinance which proposition is not disputable,
the earlier arrangement in respect of prescription of reservation no
longer holds good.
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24 It must be noted that before issuance of the Ordinance
2016 providing for direct election to the post of President of the
Municipal Council, the President of Municipal Council was elected
from amongst the elected councillors of the Municipal Councils in
view of section 51 of the Act. Section 51A-1A has been incorporated
in the Municipal Councils Act by virtue of the Amended Ordinance
of 2016. The rules, prescribing reservation of the office of the
President have been framed on 4.10.2016. In view of sub-rule (d) of
rule (2) of the Election Rules of 2016 "directly elected President"
means the President who is elected under section 51A-1A, whereas
rule 2(e) of the rules provides that "election" means election as
provided under section 51A-1A. In the instant matter, we are
concerned with elections of President under section 51A-1A. As
such the rules framed by the State Government on 4.10.2016 shall
apply. At the relevant time, when the Rules of 1981 were framed,
the election to the office of the President was prescribed from
amongst the citizens directly. However, the provision prescribing for
election of the President, directly from amongst the voters, was
deleted and section 51 was substituted by amending Act 31 of 2006
providing that President of Municipal Council be elected by elected
councillors from amongst themselves. Rules of 1981 are not framed
for the purpose of electing the President under section 51A-1A
which provision has been brought into existence only in 2016. The
argument that the Rules of 1981 would apply is thus devoid of any
merit. Even otherwise, nothing in the Rules of 1981 shall support
the action of the State Government in changing the reservation in
respect of office of the President of Vaijapur Municipal Council.
25 It is further contended by the respondents that there is
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no provision in the Rules of 2016 for rectification of the error and
as such the provisions of section 21 of the Maharashtra General
Clauses Act, 1904 have been invoked which provides that where a
power to issue notifications, orders, rules or bylaws is conferred by
State Act, then that power includes a power exercisable in the like
manner and subject to the like sanction and condition (if any) to
add, amend, vary or rescind any notification, orders, rules or
bylaws so issued. It must be emphasized that even power
exercisable by taking recourse to clause 21 of the Maharashtra
General Clauses Act shall be exercised in the like manner and
subject to the like sanction and condition (if any) to add, amend,
vary or rescind any notification, orders, rules or bylaws so issued
26 In the instant matter, a procedure has been prescribed
for reserving the office of the President in favour of woman
category i.e. by draw of lots. If at all any change is to be made, the
procedure prescribed under the relevant rules mandating to take
recourse of draw of lots must be observed. It also needs to be noted
that by virtue of the State action of taking away reservation
provided for General (women) category provided for the office of the
President of Vaijapur Municipal Council, the State has provided
less number of offices i.e. less than 50% in favour of woman
category thereby committing breach of rule 3(iv) of the Election
Rules of 2016.
27 It is further contended that since the office of the
President, Municipal Council Vaijapur was prescribed for women
general category, during the preceding term i.e. from 2014 to 2016,
in view of prescription under the Rules, in respect of allotment of
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office by rotation, the change has been brought about and the
office of the President of the Municipal Council Vaijapur has been
prescribed for open category. It is also contended that while
drawing lots for open - women category, it was necessary to
exclude the reservation which was prescribed for open - women
category during the preceding term. It is recorded in the affidavit
in reply presented by the respondents that out of total number of
Municipal Councils available for open category, there were 13
municipal councils whose offices of President were reserved for
women category during the preceding term. Therefore, the
chits/slips of those 13 Municipal Councils were required to be kept
aside, while drawing lots in order to avoid repetition of reservation.
This procedure is carried out during draw of lots itself. It is further
stated that instead of 13 chits, 11 chits were inadvertently kept
aside during draw of lots. Two municipal councils, for which chits
were not kept aside inadvertently, were Vaijapur Municipal Council
and Pandharpur Municipal Council.
28 The aforesaid contention of the respondent is clearly in
breach of the procedure prescribed for draw of lots under rule 3(2)
(i) of the Rules of 2016. Rule 3(2)(i) provides thus:
3 Reservation of offices of President and
procedure for allotting the reserved seats of
different Municipal Councils-
(2) The procedure for allotting reserved seats to
different Municipal Councils shall be as follows:
(ii) While allotting the offices of the President, for
persons belonging to the Scheduled Castes,
Scheduled Tribes and the Backward Class of citizens
(including women belonging to the said categories),
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the offices of the Presidents reserved for any of the
said categories in immediately preceding term, shall
be excluded.
The exclusion that is directed under the Rules, in the
event of prescription of reservation during immediately preceding
year in favour of Scheduled Castes, Scheduled Tribes and
backward classes of citizens only, does not apply to open women
category. The exclusion at the stage of draw of lots while allotting
the office is prescribed in the event of repetition of reservation
during immediately preceding term, only as regards SC, ST and
backward classes of citizens including women belonging to such
categories and not to any other categories including open- women
general category. The procedure that has been adopted for
excluding 11 municipal councils wherein the office of the President
was prescribed for open women category during the preceding
term is itself violative of the procedure prescribed under rule 3(2)(i)
of the Rules of 2016. It was not open for the State Government to
exclude the 11 Municipal Councils, wherein the offices of the
President, in the preceding term, were prescribed for open women
category and as such the whole process of allotment of seats by
draw of lots is liable to be vitiated.
29 Another aspect which is required to be taken into
consideration is that change is effected after the draw of lots was
conducted for prescribing reserved seats for SC, ST, OBC and
women category on 5.10.2016. The result of draw of lots was
published in the news paper on the next date. The State Election
Commission was communicated in respect of draw of lots on
7.10.2016. The list of reserved offices of the President was also sent
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to the State Election Commission along with communication dated
7.10.2016 by the State Government. The State Election Commission
acting upon the communication of the State Government in respect
of reservation of seats, issued directions within contemplation of
Rule 6 of the Rules of 2016.
30 Rule 6 provides that the State Election Commission
shall have the power to appoint or deploy the officers and members
of the staff of the council for conducting of election and matters
relating thereto. Such officers and members shall function under
the superintendence, directions and control of the State Election
Commission. The State Election Commission issued an order on
7.10.2016 and issued detail instructions within contemplation of
Rule 6 of the Rules. The State Election Commission also prescribed
the dates for declaration of the programme of election by the
Collector and the dates in respect of acceptance of nomination
papers as well as the dates for recording of votes. It is thus clear
that the State Election Commission had stepped in and taken
over the functions of holding elections. It was, therefore,
impermissible for the state Government to take steps in respect of
changing the reservation of the office of the President of the
Municipal Council Vaijapur and inform accordingly to the Election
Commission on 20.8.2016 much after issuance of instructions by
the State Election Commission in respect of holding of elections to
the President of the Municipal Councils in the State on 17.10.2016.
Issuance of communication in respect of changing reservation by
the State, issued on 20.10.2016 itself amounts to interference on
the part of the State Government in the matter of elections under
the control of State Election Commission and that too after
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issuance of instructions under rule 6 of the Rules of 2016 and
when the elections were imminent and various dates were
prescribed for conducting the process of election by the State
Election Commission. As has been observed by the Supreme
Court, it is permissible for nobody including the State Government
to cause interference in the on-going process of elections. In the
instant matter, the interference by the State Government is not
with a view to correct the illegality. However, interference itself has
an effect of committing breach of the various provisions of the
Election Rules, 2016 governing the elections to the post of
President.
31 While justifying the action of changing the reservation
prescribed while drawing the lots, it is contended that it was open
for the State Government to correct the mistake until the offices of
the President reserved and allotted are notified in the Government
Gazette. It is pointed out by the special counsel appearing for the
State that sub-rule 2(b)(iii) of Rule 3 prescribes that the offices of
the President so reserved and allotted, shall be notified in the
Official Gazette. It is informed that on 20.10.2016, the
communication was issued to the State Election Commission,
informing the change of reservation in respect of Office of the
President of Municipal Council Vaijapur. It may be true that until
such communication is made, the compliance of requirement in
respect of publication of reservation of posts of President after
draw of lots in the Official Gazette was not made. However, since
the result of draw and list of the offices reserved for various
categories was also communicated to the State Election
Commission on 7.10.2016, the State Election Commission exercised
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the powers under Rule 6 and issued an order deploying the
officers and members of the staff and also prescribed various dates
for conducting process of election including the dates for
declaration of programme, acceptance of nomination papers and
recording of votes. After the State Election Commission issued
orders under Rule 6 of the Rules of 2016, in our view, it was not
permissible for the State Government to effect any change in the
matter of reservation of the offices and that too contrary to the
provisions of Rule 3 of the Election Rules of 2016.
It is vehemently contended by the special counsel
appointed for the State Government that in view of article 243-ZG,
there is a bar for interference in the electoral matters and this
Court shall refrain from issuing any directions. Article 243-ZG
reads thus:-
243ZG. Bar to interference by Courts in electoral
matters.- Notwithstanding anything in this
Constitution,--
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under
article 243ZA shall not be called in question in any
court;
(b) no election to any Municipality shall be called in
question except by an election petition presented to
such authority and in such manner as is provided for
by or under any law made by the Legislature of a
State.
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33 Relying on judgment in the matter of State of U.P. and
others vs Pradhan Sangh Kshetra Samiti and others, AIR 1995
SC 1512, it is contended that even challenge to the orders relating
to delimitation and reservation of seats cannot be entertained after
the process of election is set in motion. Para 46 of the Judgment
reads thus:-
"46 What is more objectionable in the
approach of the High Court is that although
clause (a) of Article 243-0 of the Constitution
enacts a bar on the interference by the courts
in electoral matters including the questioning
of the validity of any law relating to the
delimitation of the constituencies or the
allotment of seats to such constituencies
made or purported to be made under Article
243-K and the election to any panchayat, the
High Court has gone into the question of the
validity of the delimitation of the
constituencies and also the allotment of seats
to them. We may, in this connection, refer to
a decision of this Court in Meghraj Kothari v.
Delimitation Commission & Ors. [(1967) 1
SCR 400]. In that case, a notification of the
Delimitation Commission whereby a city which
had been a general constituency was notified
as reserved for the Scheduled Castes. This
was challenged on the ground that the petitioner
had a right to be a candidate for Parliament
from the said constituency which had been
taken away. This Court held that the impugned
notification was a law relating to the
delimitation of the constituencies or the
allotment of seats to such constituencies made
under Article 327 of the Constitution, and that
an examination of sections 8 and 9 of the
Delimitation Commission Act showed that the
matters therein dealt with were not subject to
the scrutiny of any court of law. There
was a very good reason for such a provision
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because if the orders made under sections 8
and 9 were not to be treated as final, the result
would be that any voter, if he so wished, could
hold up an election indefinitely by
questioning the delimitation of the
constituencies from court to court. Although
an order under Section 8 or 9 of the
Delimitation Commission Act and published
under Section 10 [1] of that Act is not part of an
Act of Parliament, its effect is the same. Section
277 10 [4] of that Act puts such an order in the
same position as a law made by the Parliament
itself which could only be made by it under
Article 327. If we read Articles 243-C, 243-K
and 243-0 in place of Article 327 and sections 2
[kk], 11-F and 12-BB of the Act in place of
Sections 8 and 9 of the Delimitation Act, 1950,
it will be obvious that neither the delimitation
of the panchayat area nor of the
constituencies in the said areas and the
allotments of seats to the constituencies could
have been challenged or the Court could have
entertained such challenge except on the
ground that before the delimitation, no
objections were invited and no hearing was
given. Even this challenge could not have
been entertained after the notification for
holding the elections was issued. The High
Court not only entertained the challenge but
has also gone into the merits of the alleged
grievances although the challenge was made
after the notification for the election was
issued on 31st August, 1994."
34 Our attention is invited to a judgment in the matter of
Anugrah Narain Singh and anr. Versus State of U.P. and others
(1996) 6 SCC 303, wherein the decision in the matter of Meghraj
Kothari which is referred to in the matter of State of U.P. and
others versus Pradhan Sangh Kshetra Samiti is discussed and
elaborated in para No.25 of the judgment in detail which is
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reproduced thus:
"In this connection, it may be necessary
to mention that there is one feature to be
found in the Delimitation Commission Act, 1962
which is absent in the U.P. Act Section 10 of
the Act of 1962 provided that the Commission
shall cause each of its order made under
Sections 8 and 9 to be published in the
Gazette of India and in the official Gazettes of
the State concerned. Upon publication in
the Gazette of India every such order shall
have the force of law and shall not be called in
question in any Court. Because of these
specific provisions of the Delimitation
Commission Act, 1962 in the case of Meghraj
Kothari v. Delimitation Commission and
others, (AIR 1967 SC 669), this Court held that
notification of orders passed under Sections 8
and 9 of that Act had the force of law and
therefore, could not be assailed in any court of
law because of the bar imposed by Article 329.
The U.P. Act of 1959, however, merely provides
that the draft order of delimitation of municipal
areas shall be published in the official Gazette
for objections for a period of not less than seven
days. The draft order may be altered or
modified after hearing the objections filed, if
any. Thereupon, it shall become final. It does
not lay down that such an order upon reaching
finality will have the force of law and shall not
be questioned in any court of law. For this
reason, it may not be possible to say that such
an order made under Section 32 of the U.P. Act
has the force of law and is beyond challenge by
virtue of Article 243-ZG. But any such
challenge should be made soon after the final
order is published. The Election Court
constituted under Section 61 of the U.P. Act will
not be competent to entertain such an
objection. In other words, this ground cannot
be said to be comprised in sub-sections (iv) of
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clause (d) Section 71 of the U.P. Act. In the vary
nature of things, the Election Court cannot
entertain or give any relief on this score. The
validity of a final order published under
Section 33 of the U.P. Act is beyond the ken of
Election Court constituted under Section 61 of
the said Act. "
35 It is thus clear that the Notification of the Orders
passed under sections 8 and 9 of the Delimitation Commission Act
1962 which was a matter for consideration in Meghraj Kothari's
matter could not have been assailed since it has a force of law. So
far as the U.P.Act of 1959 is concerned, the draft order of De-
limitation of municipal areas was required to be published in the
Official Gazette and the same can be altered or modified after
hearing objections filed, if any. The U.P. Act of 1959 does not
provide that upon reaching finality, it will have a force of law and
shall not be question in any Court of law. In the instant matter
also, the orders relating to reservation of the offices, does not have
force of law, nor there is such prescription made under the Election
Rules of 2016. The issue in the matter of State of U.P. Vs Pradhan
Sangh Kshetra Samiti and others is thus distinguishable.
36 Learned Counsel appearing for the petitioner has
invited our attention to the judgment in the matter of K.
Venkatachalam versus A. Swamickan AIR 1999 SC 1723 to
contend that the High Court can exercise jurisdiction under Article
226 and declare that the appellant is not qualified to be member of
Legislative Assembly. As has been held in the aforesaid judgment,
it is thus contended that in the case, wherein the illegalities are
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palpable, interference is permissible. It shall be borne in mind
that in the instant matter, it is the State Government which has
interfered and changed the reservation prescribed for office of the
President of Vaijapur Municipal Council after the draw of lots. The
State Government is instrumental in creating impediments in the
process of election. After it was brought to the notice of the High
Court, the learned Single Judge of this Court, during vacation,
during admission hearing, mandated the Collector, not to issue
Notification for the election. Thus the Notification for election has
not been issued by the Collector and the actual process of election
has not been set in motion.
37 It is also contended by the petitioner placing reliance
on the Supreme Court judgment in the matter of Babaji Kondaji
Garad versus Nasik Merchants Co-operative Bank Ltd AIR
1984 SC 192 that when the statute requires certain things to be
done in certain manner, it must be done in that manner alone,
unless a contrary indication is found in the statute. It is contended
that the change in reservation prescribed after draw of lots at the
instance of the State Government is in breach of the Rules and
while effecting change, the procedure prescribed under the Rules
has been given go by which is contrary to the principle laid down
by the Supreme Court in the aforesaid matter.
38 Learned Special Counsel appearing for the State
Government as well as intervener have contended that the
petitioner does not have locus standi to present the petition. It is
contended that since the office of the President is prescribed for
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open category, petitioner can very well contest the election and
there is no impediment for her and no prejudice as such is caused
by prescribing change in reservation. Reliance is placed on the
judgment in the matter of Jasbhai Motibhai Desai Versus Haji
Bashir Ahmed and others 1976 1 SCC 671. In paragraphs No.36
to 38 of the Judgment, it is observed thus:-
"36 It will be seen that in the context of locus
standi to apply for a writ of certiorari, an applicant
may ordinarily fall in any of these categories: (i)
'person aggrieved'; (ii) 'stranger'; (iii) busybody or
meddlesome interloper. Persons in the last category
are easily distinguishable from those coming under
the first two categories. Such persons interfere in
things which do not concern them. They masquerade
as crusaders for justice. They pretend to act in the
name of Pro Bono Publico, though they have no
interest of the public or even of their own to protect.
They indulge in the past time of meddling with the
judicial process either by force of habit or from
improper motives. Often, they are actuated by a
desire to win notoriety or cheap popularity; while the
ulterior intent of some applicants in this
category, may be no more than spoking the
wheels of administration. The High Court should do
well to reject the applications of such busybodies at
the threshold.
37 The distinction between the first and
second categories of applicants, though real, is not
always well demarcated. The first category has, as it
were, two concentric zones; a solid central zone of
certainty, and a grey outer circle of lessening certainty
in a sliding centrifugal scale, with an outermost
nebulous fringe of uncertainty. Applicants falling
within the central zone are those whose legal rights
have been infringed. Such applicants undoubtedly
stand in the category of 'persons aggrieved'. In the
grey outer-circle the bounds which separate the first
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category from the second, intermix, interfuse and
overlap increasingly in a centrifugal direction. All
persons in this outer zone may not be "persons
aggrieved.
38 To distinguish such applicants from 'strangers',
among them, some broad tests may be deduced from
the conspectus made above. These tests are not
absolute and ultimate. Their efficacy varies according
to the circumstances of the case, including the
statutory context in which the matter falls to be
considered. These are: Whether the applicant is a
person whose legal right has been infringed? Has he
suffered a legal wrong or injury, in the sense that
his interest, recognised by law. has been
prejudicially and directly affected by the act or
omission of the authority, complained of ? Is he a
person who has suffered a legal grievance, a person
"against whom a decision has been pronounced
which has wrongfully deprived him of something or
wrongfully refused him something, or wrongfully
affected his title to something" ? Has he a special
and substantial grievance of his own beyond some
grievance or inconvenience suffered by him in
common with the rest of the public ? Was he entitled
to object and be heard by the authority before it took
the impugned action? If so, was he prejudicially
affected in the exercise of that right by the act of
usurpation of jurisdiction on the part of the
authority ? Is the statute, in the context of which the
scope of the words "persons aggrieved" is being
considered, a social welfare measure designed to lay
down ethical or professional standards of conduct for
the community ? Or is it a statute dealing with private
rights of particular Individuals."
39 It is contended that the petitioner cannot be
considered as a person aggrieved since it is open for her to contest
the elections. It is further contended that the petitioner cannot be
permitted to choose her opponent by insisting that the office of the
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President shall be earmarked for women category. In the instant
matter, the petitioner is a woman member and the Office of
President was prescribed by draw of lots conducted under rule 3 of
the Rules of 2016 for women category. The object behind
prescribing reservation not less than 50% of the total offices in
the local authorities in favour of the women is to ensure that the
significant part of the population i.e. women shall get adequate
representation in the local bodies. It is a matter of common
knowledge that during past several decades, the women members
seldom got representation over local bodies commensurate with
population of women in the society and as such a special provision
was required to be made to ensure adequate representation for
women members. The illegality, that has been brought to the notice
in the instant matter, defeats the very purpose for which
prescription has been made under the constitutional provision as
well as under the statute requiring reservation of seats for women
members. It is, therefore, not prudent to contend that the
petitioner, who is a woman member does not have locus standi to
insist that reservation in favour of woman category shall be
maintained and shall not be disturbed, although change, that has
been brought about is in contravention of rules. Arguments
advanced by the learned special counsel as well as the counsel for
intervenor questioning the locus standi of the petitioner deserve to
be rejected.
40 Learned Counsel appearing for the State Election
Commission contends that the term of office of the outgoing
President comes to an end in December, 2016. For completing the
process of election from the date of issuance of Notification by the
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District Collector till declaration of results approximately 45 days
time would be required. Therefore, directions are solicited in
respect of intervening period between 28.12.2016 i.e. the last date
of office of the outgoing President until assumption of Office by the
newly elected President.
41 It is contended by the learned Counsel appearing for
the State Election Commission that in view of the judgment of the
Supreme Court in the matter of State of Maharashtra & others
Vs. Jalgaon Municipal Council & others, (2003) 9 SCC 731, an
appropriate care can be taken by issuing directions in respect of
hiatus occurring as a result of expiration of period of outgoing
President on 28.12.2016 and installation of the President in office
by virtue of the elections, those would be held immediately on
disposal of the instant petition, by directing appointment of an
Administrator for a short duration. It would be open for the State
Government to appoint an Administrator for intervening period
between 28.12.2016 i.e. the last date in office of the outgoing
President till assumption of newly elected President.
42 For the reasons recorded above, writ petition deserves
to be allowed and same is accordingly allowed. The orders issued
and communicated to the State Election Commission by
respondent No.1 State on 20.10.2016, prescribing the Office of the
President of Vaijapur Municipal Council for open category instead
of open - women category, are quashed. Reservation prescribed in
respect of office of the President of Vaijapur Municipal Council, by
draw of lots and communicated to the State Election Commission
by respondent No.1 State on 7.10.2016, shall be maintained and
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further process of election shall be undertaken forthwith.
43 Rule is accordingly made absolute.
44 There shall be no order as to costs.
45 Civil Application No.14663 of 2016 does not survive
and stand disposed of.
JUDGE
(SANGITRAO S. PATIL) (R.M.BORDE)
JUDGE
vbd
