Bombay High Court
Sayali Roshan Jadhav vs The State Of Maharashtra And ... on 1 September, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10621 OF 2017
SAYALI ROSHAN JADHAV
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Shri Thoke Dhananjay B.
AGP for Respondents 1 to 3/ State : Shri S.K.Tambe.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 01st September, 2017
Oral Order :
1 After considering the strenuous submissions of the learned
Advocate for the Petitioner and the learned AGP on behalf of Respondent
Nos.1, 2 and 3, I had observed in my order dated 24.08.2017 in
paragraphs 2 to 12 as under:-
"2. The election program for the election to the
Jalgaon District Planning Committee has been
published on 05/08/2017. The nomination papers
have been scrutinized from 16/08/2017 and
18/08/2017 was the day for publication of the list of
valid nominations.
3. The petitioner is aggrieved by the rejection of
her nomination paper by the District Collector of
Jalgaon which was earlier accepted by the Returning
Officer.
4. As per the election program, the elections were to be
held for two constituencies, namely, Rural Area
Constituency and Small Urban Area Constituency.
In so far as the reserved post for Scheduled Caste and
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Scheduled Tribe in the said election is concerned, Rule
16 (3) Maharashtra District Planing Committee
(Election) Rules, 1999 framed under of the
Maharashtra District Planning Committee
(Constitution and Functions) Act, 1998, require
a certificate from the authority certifying that
the candidate is elected to the respective body against
the reserved seat. The authorities prescribed are
C.E.O. of the Zilla Parishad or the C.O. of the
Municipality or Nagar Panchayat and the
Commissioner of the Municipal Corporation.
5. The petitioner makes a statement on oath that she
has been elected against the reserved seat for the
Scheduled Caste - Women from the Nagar Parishad,
Chalisgaon. The certificate issued by the C.O. of the
Nagar Parishad, Chalisgaon is at page No. 20.
6. Respondent No.4 herein, Asmita had
approached the District Collector against the
rejection of her nomination. She has not
challenged the acceptance of the nomination
of the petitioner. She has only quoted the example of
the petitioner in paragraph No. 2 E of the
appeal to indicate that when the petitioner
was elected against the Scheduled Caste post from
the Pachora Municipal Council, her
nomination paper was accepted and the
nomination paper of respondent No. 4 was
rejected, though she was elected to the
position reserved for Scheduled Caste. She has cited
the example of the petitioner, only to canvass a point
that she being identically placed, her nomination
paper should have been accepted.
7. Grievance of the petitioner is that the matter
pertaining to Asmita/respondent No. 4 has nothing to
do with the case of the petitioner and the petitioner
obviously not being a party to the proceeding being
initiated by Asmita, finds her nomination form
rejected by the District Collector by the impugned
order passed in the case of Asmita.
8. Rule 16 (3) reads as under :
In the case of a reserved seat, a
candidate qualified to contest the election to
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such seat, should produce certificate from the
respective Authority certifying that he is elected to the
respective body against; the reserved seat. (Authority
- Chief Executive Officer of the Zilla Parishad or
Chief Officer of the Municipality, or the Nagar
Panchayat and Commissioner of the Municipal
Corporation.)
9. There is no dispute as regards the Rule that
a person must primarily be elected to the post
reserved for a particular Caste or Tribe in the elections
of the Municipal Council or Nagar Panchayat or
Municipal Corporation and then he or she would be
entitled for contesting the elections under the
Elections to the District Planning Committee.
10. Page No. 20 indicates that the petitioner was elected
to the Chalisgaon Municipal Council from the
reserved category of Scheduled Caste. Learned AGP,
on the basis of the record and the Rules, submits that
if this aspect is true, then the petitioner would be
eligible for contesting the election to the
District Planning Committee from the Small Urban
Area Constituency reserved for the Scheduled Caste
category.
11. Considering the above, issue notice to the
respondents, returnable on 01/09/2017. Matter
shall appear in the supplementary board.
Besides Court notice, petitioner shall serve
respondent No. 4 personally, as well as by Speed Post
A.D. and file a service affidavit and a copy of the
tracking report of from the Post and Telegraph
Website. Learned AGP waives service for
respondent Nos. 1, 2 and 3.
12. Pending the decision in this Writ Petition, the
impugned order dated 23/08/2017, to the extent of
the petitioner herein, shall stand stayed and the
nomination form of the petitioner shall be
provisionally accepted. Needless to state, this petition
would be considered on 01/09/2017 and no
adjournment would be granted. This ad-interim
order would not create any equities in favour of the
petitioner."
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2 The Petitioner has tendered the service affidavit sworn on
oath dated 30.08.2017 stating therein that the notice was served by hand
delivery on Respondent No.4 (Asmita). A tiny signature, appearing on
page 3 accompanying the service affidavit, is said to be the signature of
Respondent No.4 (Asmita), according to the Petitioner.
3 Learned AGP has tendered an affidavit in reply dated
31.08.2017 filed by the Returning Officer/ Respondent No.3 herein. Based
on the said affidavit, learned AGP submits that as the Petitioner was
elected as a Councillor on the post reserved for the Scheduled Caste
(Women) category, she cannot contest the election for the post reserved
for the Scheduled Caste general as the said post is not reserved for
Scheduled Caste (Women). Further contention is that the Councillors, who
have been elected in the Municipal Councils to the posts reserved for
Scheduled Caste (Women/Female) or Scheduled Caste (Male), would not
be eligible for the election to the District Planning Committee as the post
is reserved for Scheduled Caste and there is no reference as to whether, it
would be open for all candidates falling in the Scheduled Caste category
to contest for the said post.
4 I have perused the Election Notification in Form 1-A under
Rule 13 placed on record. It is not in dispute that the Councillors or
Corporators, who are elected to the respective bodies, are eligible for
contesting the election to the District Planning Committees. The feeding
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channel of such eligible candidates is from amongst the Councillors/
Corporators. Insofar as the Small Urban Constituency is concerned, one
post is reserved for Scheduled Tribe, one for Scheduled Caste and out of
the two posts reserved for Backward Class Citizens, one was reserved for
Women.
5 It, therefore, is indicative that a single post reserved for
Scheduled Caste in the election programme, does not prescribe that only
those candidates, who were elected from the Scheduled Caste category to
the Municipal Councils, would be eligible and those candidates, who were
elected to the posts reserved for Scheduled Caste (Women) and Scheduled
Caste (Male), would not be eligible.
6 Learned AGP submits that this may be an ambiguity, but has
been interpreted by the Collector as being prohibitive for the candidates
elected from Scheduled Caste (Women) and Scheduled Caste (Male)
categories.
7 I find, on a plain reading of the election programme, that a
single post reserved for the Scheduled Caste would be available to all
candidates elected to the posts reserved for the Scheduled Caste,
notwithstanding whether, they are for Scheduled Caste (Male) or
(Female/ Women) in the respective Municipal Councils. Unless a specific
exclusion is prescribed, there cannot be an implied exclusion. Such aspects
are to be considered by giving a broader meaning. There may be an
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implied inclusion, but there cannot be an implied exclusion.
8 Section 4 of the Maharashtra District Planning Committees
(Constitution and Functions) Act, 1998 reads as under:-
"4. Reservation of seats.
(1) In the seats to be filled in by election in the District
Planning Committee, there shall be seats reserved for
persons belonging to the Scheduled Castes, Schedule
Tribes, Backward Class of Citizens and women, as
provided in sub-sections (2) and (3) in the prescribed
manner.
(2) The number of seats to be reserved for the persons
belonging to the Scheduled Castes in each
constituency shall bear, as nearly as may be, the same
proportion to the total number of Scheduled Caste
members in that constituency as the population of the
Scheduled Castes in the district bears to the total
population of the District:
Provided that, one-half of the total number of
seats so reserved shall be reserved for women
belonging to the Scheduled Castes:
Provided further that, where the number of
seats reserved for Scheduled Castes is only one, then
no seat shall be reserved for woman belonging to the
Scheduled Caste.
[(2A) One seat shall be reserved for the Scheduled Tribes in
a District Planning Committee where the constituency
of such district is having the largest number of elective
seats in the general category, and where such district
does not have a separate District Planning Committee
exclusively for the Tribal Sub-Plan:
Provided that, no seat shall be so reserved if
there is no member belonging to a Scheduled Tribe
amongst the members of the Constituencies of the
District Planning Committees.]
(3) The number of seats to be reserved for the persons
belonging to Backward Class of Citizens shall be
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thirty per cent, of the total number of seats to be
filled-in by election in the District Planning
Committee:
Provided that, one-half of the total number of
seats so reserved shall be reserved for women
belonging to the category of Backward Class of
Citizens.
(4) One-half (including the number of seats reserved for
women belonging to the Scheduled Castes, the
Scheduled Tribes and the Backward Class of citizens)
of the total number of seats to be filled in by election
from the urban area or rural area in a District
Planning Committee shall be reserved for women."
9 Section 4(1) specifically mentions that for the seats to be
filled in by election to the District Planning Committee, there shall be
reservation of seats for persons belonging to Scheduled Caste, Scheduled
Tribe, Backward Class of Citizens and Women. The second proviso to
Section 4(2) indicates that where the number of seats reserved for
Scheduled Caste is only one, then, no seat shall be reserved for a Woman
belonging to Scheduled Caste. This would, therefore, indicate that those
male and female candidates elected as Councillors from the Scheduled
Caste category, would be eligible to contest the solicitory post reserved for
the Scheduled Caste in the District Planning Committee. When there is no
reservation with regard to male or female, both would be entitled to
contest the election having been elected from the Scheduled Caste
category in the respective Municipal Councils.
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10 Learned AGP informs, on instructions, that the list of
contesting candidates has been finalized and the voting is scheduled on
07.09.2017.
11 Learned Advocate for the Petitioner submits that insofar as
the Petitioner is concerned, the Returning Officer, by the declaration dated
29.08.2017 published under Rule 23(1), has declared the Petitioner to be
the only contesting candidate for the post reserved for Scheduled Caste.
He, therefore, submits that the Petitioner would stand elected unopposed.
12 The said declaration dated 29.08.2017 tendered by Shri
Thoke is taken on record and marked as "X" for identification.
13 Considering the above, this Writ Petition is allowed. The
impugned order dated 23.08.2017 passed by the District Collector,
Jalgaon is quashed and set aside to the extent of the Petitioner herein,
who has challenged the said order. Her nomination for contesting the
election to the concerned post stands accepted.
kps (RAVINDRA V. GHUGE, J.)
