Bombay High Court
Sajid Majid Khan And Another vs The State Election Commission ... on 28 March, 2016
Bench: S.V. Gangapurwala
1 W.P.No.3196/16 with W.P.No.3420/16
REPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.3196 OF 2016
1. Sajid S/o Majid Khan,
Age 29 years, Occ.Business,
R/o Wai Bazar, Tq. Mahur,
Dist.Nanded.
2. Babarao S/o Parashram Kandhare,
Age 35 years, Occ.Labour,
R/o as above. ... Petitioners.
Versus
1. The State Election Commission,
Maharashtra State, Mumbai,
through the Commissioner/
Asstt. Commissioner.
2. The Collector, Nanded,
Tq, and Dist.Nanded.
3.The Asstt. Collector/Sub
Divisional Officer,
Kinwat, Tq.Kinwat, Dist.
Nanded.
4. The Tahsildar, Mahur,
Tq. Mahur, Dist.Nanded. ... Respondents.
...
Mr.P.V.Mandlik, Senior advocate for the
petitioners.
Mr.S.T.Shelke, advocate for Respondent No.1.
Mr.V.M.Kagane, A.G.P for the State
...
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2 W.P.No.3196/16 with W.P.No.3420/16
WRIT PETITION NO.3420 OF 2016
Shaikh Salim S/o Shaikh
Madar, Age 49 years,
Occ.Social Worker,
R/o Gokunda Tq. Kinwat,
Dist.Nanded. ... Petitioner.
Versus
1. The State Election
Commission, through its
Assistant Commissioner.
2. The State of Maharashtra,
through District Collector,
Nanded.
3. The Tahsildar,
Tahsil Office, Kinwat,
Dist.Nanded.
4. The Sub-Divisional
Officer, Kinwat, Dist.
Nanded. ... Respondents.
...
Mr.P.B.Rakhunde, advocate for the petitioner.
Mr.S.T.Shelke, advocate for Respondent No.1.
Mr.P.S.Patil, A.G.P for the State.
...
CORAM : S.V.GANGAPURWALA AND
A.I.S.CHEEMA,JJ.
Date : 28.03.2016.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. This Court had issued notice on
17.3.2016 and 23.3.2016. Mr.Kagne and Mr.Patil,
learned A.G.Ps submit that necessary instructions
are received from the Officers who are present in
the Court.
2. With the consent of the parties taken
up for final hearing.
3. Both these Writ Petitions are based on
similar set of facts and involve common question
of law, as such to avoid rigmarole are decided
by common judgment.
4. Mr.Mandlik, learned Senior counsel and
Mr.Rakhunde, learned counsel for respective
petitioners submit that the village Panchayat
Waibazar, Tq. Mahur,Dist.Nanded and Village
Panchayat Gokunda, Tq.Kinwat, Dist.Nanded are
entirely scheduled areas. In case of Village
Panchayat Waibazar, there are 13 seats, out of
that 7 seats are reserved for Scheduled Tribe
category and one seat is reserved for Scheduled
Caste. As per Ist proviso to Section 10(2)(c) of
the Maharashtra Village Panchayats Act, the
reservation of the seats meant for Backward class
of citizens shall be 27% of the seats remaining
if any, after the reservation of the seats for
Scheduled Tribes and Scheduled Caste. The
learned counsel submits that in the present case
while reserving the seats for other Backward
class category, the Respondents have followed the
provision of Section 10(2)(c) ignoring the
proviso. ig According to them, the same is illegal.
In Waibazar Village Panchayat, four seats are
reserved for Backward class citizen and one for
General category, whereas in Village Panchayat
Gokunda, out of 17 seats, four seats are reserved
for Backward class citizen, nine are reserved for
Scheduled Tribe, four for Scheduled Caste and no
seat is meant for open category candidate.
5. Mr.Kagne and Mr.Patil, learned A.G.Ps.
On instructions submit that Respondents have
followed the provision embodied in Section 10(2)
(c) of the Maharashtra Village Panchayats Act.
Learned A.G.Ps further submit that the
authorities have relied on the communication
received from the office of the State Election
Commission. Out of total number of seats, 27%
seats are reserved for Backward class candidates.
The same is legal and permissible.
6. Mr.Shelke, learned counsel for Election
Commission submits that Ist proviso to Section
10(2)(c) is also required to be followed while
issuing the notification regarding reservation.
7.
We have considered the submissions
canvassed by learned counsel for respective
parties. Before we advert to the contentions of
the learned counsel for respective parties, it
would be appropriate to refer to the relevant
provision :-
"10. Constitution of
Panchayats.-(1)xxx
(2)(a) In the seats to be
filled in by election in a Panchayat
there shall be seats reserved for
persons belonging to the Scheduled
Castes, the Scheduled Tribes, Backward
Class of Citizens and Women, as may be
determined by the State Election
Commission in the prescribed manner;
(b) the seats to be reserved
for the persons belonging to the
Scheduled Castes and the Scheduled
Tribes in a Panchayat shall bear, as
nearly as may be, the same proportion
to the total number of seats to be
filled in by direct election in that
Panchayat
ig as the population of the
Scheduled Castes or, as the case may
be, the Scheduled Tribes, in that
Panchayat area bears to the total
population of that area and such seats
shall be allotted by rotation to
different wards in a Panchayat
Provided that, in a Panchayat
comprising entirely the Scheduled
Areas, the seats to be reserved for the
Scheduled Tribes shall not be less than
one half of the total number of seats
in the Panchayat.
Provided further that, the
reservation for the Scheduled Tribes in
Panchayat falling only partially in the
Scheduled Areas shall be in accordance
with the provisions of clause (b):
Provided also that one half
of the total number of seats so
reserved shall be reserved for women
belonging to the Scheduled Castes, or,
as the case may be, the Scheduled
Tribes;
ig (c) the seats to be reserved
for persons belonging to the category
of Backward Class of Citizens shall be
27 per cent of the total number of
seats to be filled in by election in a
Panchayat and such seats shall be
allotted by rotation to different wards
in a Panchayat:
Provided that, in a Panchayat
comprising entirely the Scheduled
Areas, the seats to be reserved for
persons belonging to the Backward Class
of Citizens shall be 27 per cent of the
seats remaining, if any, after
reservation of the seats for the
Scheduled Tribes and the Scheduled
Castes:
Provided further that, the
reservation for the persons belonging
to the Backward Class of Citizens in a
Panchayat falling only partially in the
Scheduled Areas shall be as per the
provisions of clause (c)]:
Provided also that, one-half
of the
ig total number of seats so
reserved shall be reserved for women
belonging to the category of Backward
Class of citizens;
(d) one-half (including the
number of seats reserved for women
belonging to the Scheduled Castes, the
Scheduled Tribes and the category of
Backward Class of Citizens) of the
total number of seats to be filled in
by direct election in a Panchayat shall
be reserved for women and such seats
shall be allotted by rotation to
different wards in a Panchayat."
(Emphasis supplied to highlight
difference)
8. It is not disputed that the Village
Waibazar, Tq.Mahur and Village Panchayat Gokunda,
Tq.Kinwat are entirely Scheduled areas, wherein
the population is predominantly of Scheduled
Tribe category persons.
9. As per Ist proviso to Section 10(2)(b)
in a Panchayat comprising entirely the Scheduled
areas, the seats to be reserved for the Scheduled
Tribes shall not be less than one half of the
total number of seats in the Panchayat. As
stated above, it is not disputed that both these
villages are entirely Scheduled areas. The
Respondents have not committed any error while
reserving 50% of the seats for Scheduled Tribes.
In Grampanchayat Waibazar, out of 13 seats, 7
seats are reserved for Scheduled Tribe category
and in Grampanchayat Gokunda out of 17, 9 seats
are reserved for Scheduled Tribe category. Thus
it would appear that the reservation for
Scheduled Tribe category has been rightly
provided. However, while providing reservation
for Backward class citizen i.e. reservation of
27%, the Respondents have provided 27%
reservation for Backward class citizen out of
total number of seats to be filled in by the
election. The Respondents have applied the
provision as applicable to the Grampanchayat of
non-Scheduled areas or partially Scheduled areas.
While providing 27% of reservation to the
Backward class category out of total number of
seats, the Respondents have applied the provision
of Section 10(2)(c) ignoring the proviso to said
Section 10(2)(c).
10. As a general rule, a proviso is added
to an enactment to qualify or create an exception
to what is in the enactment. The proper function
of a proviso is that it qualifies the generality
of the main enactment by providing an exception
and taking out as it were, from the main
enactment, a portion which, but for the proviso
would fall within the main enactment. A proviso
to a particular provision of a statute only
embraces the field which is covered by the main
provision. It carves out an exception to the
main provision to which it has been enacted.
Where language used in proviso is clear
unambiguous and no alternative view is possible,
it is futile to go into the question whether the
proviso operates as a substantive provision or
only by way of exception and the plain meaning
must be adopted. The Ist proviso to Section
10(2)(c) even if read harmoniously with Section
10(2)(c), it leads to an irresistible conclusion
that in a Panchayat comprising entirely Scheduled
Areas, the
ig seats to be reserved for persons
belonging to Backward class of citizens is 27% of
the seats remaining after reservation of seats
for the Scheduled Tribe and Scheduled Caste
category.
11. In the present case as demonstrated
above the reservation for Backward class of
citizen has been provided out of total number of
seats of the Panchayat and not out of the seats
remaining after providing reservation for
Scheduled Tribe and Scheduled Caste category
candidates. The same is erroneous and not in
consonance with the Ist proviso to Section 10(2)
(c) of the said statute.
12. It is submitted that the notification
for the elections has been issued and the date
for filling in nomination forms is to commence
from 29.3.2016 and the same can be filled in upto
2.4.2016.
13. We are conscious of the fact that this
Court in normal course in exercise of its writ
jurisdiction ig under Article 226 of the
Constitution of India, would not interfere with
the process of election. However, the powers
under Article 226 of the Constitution of India
can be exercised when there is an act which is
manifestly against any provision of law. If the
powers are not exercised when they are required
the potential of powers would be redundant and
would be reduced to dead letter. The
reservations provided itself being illegal and
against the statutory provision in operation,
such a reservation would vitiate the election
itself. The elections can not be allowed to be
held on the basis of reservations and allocation
of which on the face of it is against the
statute, the same being ex-facie erroneous. The
purity of the elections would not be maintained
if the elections are held on the basis of such
reservation not adhering to the Ist proviso of
Section 10(2)(c) of the Maharashtra Village
Panchayats Act.
14. In the result, the notification dated
26.2.2016 in respect of reservation of seats for
elections of Grampanchayat Wai-bazar and Gokunda
to the extent providing reservation for Backward
class of citizens is quashed and set aside. The
Respondents may issue fresh notification in
respect of village Wai-bazar,Taluka Mahur,
Dist.Nanded and Gokunda, Taluka Kinwat,
Dist.Nanded, with regard to the reservation of
Backward class citizen in accordance with first
proviso to Section 10(2)(c) of the Maharashtra
Village Panchayats Act and conduct elections
accordingly.
Sd/- Sd/-
(A.I.S.CHEEMA,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp319616
