Bombay High Court
Vijaysing Nathesing Rajput vs The State Of Mah And Ors on 19 September, 2017
Bench: R.D. Dhanuka
W.P. 9286-2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.9286 OF 2012.
Vijaysing S/o Nathesing Rajput,
Age : 60 Years, Occu. Agriculture,
R/o. Sakuba Niwas, Shindhkheda,
Tq. Shindkheda, Dist. Dhule. ... PETITIONER
VERSUS
1) The State of Maharashtra,
through the Secretary,
Urban Development,
Mantralaya Mumbai-32.
2) Nagarpanchayat Shindkheda,
Through its Administrator.
3) The Collector,
Dhule.
4) The State Election Commission,
Maharashtra State, Mumbai
Through its Standing Counsel
5) Kiran s/o Fakira Thorat,
Age : 35 Years, Occ. Labour
6) Banubai w/o Namdev Bhil
Age : 50 Years, Occ. Labour
7) Shahnavazbi Shaikh Bashir Bagawan
Age : 50 Years, Occ. Household,
8) Deepak Sudhakar Desale,
Age : 40 years, Occu. Business,
9) Shushma Deepak Chaudhari,
Age : 32 years, Occ. Household,
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W.P. 9286-2012
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10) Chandrasing Dhansingh Rajpur,
Age : 55 Years, Occ. Agriculture
11) Ashokrao Shankarrao Patil,
Age : 60 Years, Occ. Household,
12) Shaikh Shabnambi Shaikh Mansur
Age : 45 years, Occu. Household
13) Pramilabai Dharmraj Patil,
Age : 32 years, Occ. Household,
14) Sonali W/o Rakesh Mahire
Age : 32 years, Occu. Household,
15) Nimbaji S/o Avchit Sonwane
Age : 60 years , Occu. Pensioner
16) Ulhas S/o Shamkant Deshmukh
Age : 35 years, Occu. Business
17) Mathurabai W/o Namdev Marathe,
Age : 60 years, Occu. Household,
18) Tukaram S/o Chamaru Mali,
Age : 45 years, Occu. Agriculture
19) Ushabai w/o Ganesh Mali
Age : 40 years, Occ. Household
20) Sunanda W/o Ravindra Mali,
Age : 40 years, Occu. Household
21) Nirmal W/o Yuvraj Mali,
Age : 40 years, Occu. Household
All R/o. Shindekheda,
Tq. Shindkheda, Dist. Dhule. ... RESPONDENTS.
...
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W.P. 9286-2012
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Mr. B.R.Waramaa Advocate for petitioner.
Mr. Y.G.Gujarathi A.G.P. For respondent No. 1 & 3-
State
Mr. A.D.Pawar Advocate for Respondent Nos. 5 to 8, 14
to 17 and 21.
Mr.D.S. Bagul Advocate for Respondent No.9 to 13,18
to 20
Mr. S.T.Shelke h/f Mr. M.B. Bharaswadkar,
Advocate for respondent No.4.
...
CORAM : R.D.DHANUKA AND
SUNIL K. KOTWAL JJ.
Reserved on : 13.09.2017
Pronounced on : 19.09.2017
JUDGMENT ( PER R.D.DHANUKA J.)
1] By this petition filed under Article 226 of the
Constitution of India, petitioner seeks a writ of certiorari
for quashing and setting-aside notification dated 23 rd
October, 2012, issued by the respondent Collector, Dhule
under section 10 of the Maharashtra Municipal Council,
Nagar Panchayat and Industrial Township Act, 1965
( Hereinafter referred for short as the said Act), for
holding election of respondent No.2 and further seeks
that this Court shall hold and declare that the scheme of
section 10 (2) of the said Act is in breach of Section
W.P. 9286-2012
341(B) of the said Act.
2] The petitioner also seeks a writ of mandamus
thereby directing the respondent No.3 Collector to hold
afresh the process for formation of wards to the election
of Nagar Panchayat Shindkheda, District Dhule and for a
writ of Certiorari for quashing and setting-aside the
election result declared on 14th January 2013 of the said
Nagar Panchayat Shindkheda declaring the respondent
Nos. 5 to 25 elected. The petitioner also seeks an order
and direction against the respondent No.4 to hold the
election of the respondent No.2 Nagar Panchayat afresh
and as per scheme of section 341-B of the said Act.
Some of the relevant facts for deciding this petition
are as under :-
3] The petitioner is Ex-member of Village Panchayat,
Sindkheda and Panchayat Samiti, Shindkheda and is
active in political movement and democratic process of
election. The name of the petitioner is included in voters
list of last Assembly election and election of village
W.P. 9286-2012
panchayat, Sindkheda i.e. in ward No.2 held in 2010 and
had exercised his right to vote in last election of village
panchayat, Sindkheda held in 2010.
4] Village Panchayat, Shindkheda is abolished and
Nagar Panchayat is constituted by the State of
Maharashtra by issuing notification dated 17-07-2012.
The State of Maharashtra appointed Administrator to
look after the business of Nagar Panchayat, Sindkheda.
5] As per the letter dated 13th September, 2012, the
State Election Commission, Maharashtra State-
Respondent No.4 herein started the process of formation
of wards vide letter dated 13-09-2012 and published a
detailed programme for formation of wards and allotment
of reservations of seats. By the said letter, the Collector,
Dhule was required to submit draft proposal for
formation of wards on or before 24-09-2012. Last date
for according sanction to the draft proposal for formation
of wards by Regional Director, Municipal Administration,
Nashik Region, Nashik was 28-09-2012. The last date for
W.P. 9286-2012
publication of draft of formation of wards and maps was
fixed as 08-10-2012. Last date for inviting objections to
the draft proposal of formation of wards from the voters
was 16th October, 2012. The date of hearing of the
objections was scheduled on 18th October, 2012. Last
date for final submission of final opinion on objections of
the Regional Director was 20th October, 2012. Date for
Publication of final notification u/s 10 was 23 rd October,
2012.
6] The respondent No.3 published a draft plan
for formation of wards on 6th October, 2012. Pursuant to
the said draft plan issued by respondent No.3, the
petitioner submitted his objection for formation of wards
on 16th October, 2012 and raised various objections. It
is the case of the petitioner that, he was present in the
office of the Respondent No.3 on 18th October, 2012 but
Respondent No.3 did not attend the hearing. On 18th
October, 2012, Respondent No.3 rejected the objection
raised by the petitioner. The petitioner was informed
about the said rejection of the application by letter dated
W.P. 9286-2012
18th October, 2012 which letter was received by the
petitioner on 20th October, 2012. In para No. 7 of the
petition, the petitioner has summarized eight objections
raised by the petitioner before the respondent No.3 in the
letter dated 16th October, 2012.
7] Mr. B.R. Waramaa, the learned counsel for the
petitioner filed a compilation of judgments and also
written submissions for consideration of this court. He
also made oral submissions before this Court, which are
summarized in the written arguments along with
compilation of documents. The learned counsel placed
reliance on letter dated 6th October, 2011 issued by the
respondent No.4 annexed at (Exh.'L') to the petition and
further submits that Article 243-ZA of the Constitution of
India applies to the election of the Municipalities. He
submits that, section 341(1)(B) of the said Act, postulates
constitution of Nagar Panchayat. He relied upon Section
10 of the said Act and submits that the said provision
has limited application to the election of Nagar
Panchayat i.e. to the tune of reservation of seats. He
W.P. 9286-2012
invited our attention to the definition of Nagar Panchayat
under Section 2 ( 25)(A) of the said Act.
8] It is submitted by the learned counsel that
respondent No.3 had illegally framed the wards and thus
entire election process was vitiated. He submits that the
process of holding and completing election of Respondent
No.2 Nagar Panchayat also was illegal. The respondent
No.4 has ignored mandate of law and acted arbitrarily. In
the absence of any legal provision in the statute, the
respondent Nos.3 and 4 had no power to hold election
contrary to the scheme of Section 341-B of the said Act.
It is submitted that under Section 341(B) of the said
Act, each ward shall elect one Councillor. He submits
that in this case, the State Election Commissioner had
fixed 17 Councilors to be elected for Nagar Panchayat,
Shindkheda, to be elected. He submits that said 17
Councilors were elected in four wards. Five seats are
allotted in the ward No.2. It is submitted that in each
ward, more than one Councilor was elected in view of the
illegal direction issued by the respondent no.4. The
W.P. 9286-2012
respondent No.3 has committed basic illegalities in
formation of the wards.
9] It is submitted by the learned counsel for the
petitioner that, in ward No.4, five candidates were
permitted by the Election Commission without amending
Section 341(B) of the Act Same process was permitted in
all four wards and one voter was permitted to cast more
than one vote to elect more than one Councilors.
10] It is submitted by the learned counsel for the
petitioner that respondent No.3 had formed Multiple
Member Wards illegally. He invited our attention to the
fresh notification dated 13th June, 2017, issued by the
Election Commissioner, announcing the election of the
said Nagar Panchayat. He submits that in the said
notification, the State Election Commissioner has now
directed that there shall be one Councilor for each ward.
The learned counsel for the petitioner invited our
attention to the order passed by this Court on 30-01-13
allowing the petitioner to carry out amendment to the
W.P. 9286-2012
writ petition and to implead the successful candidates in
the election. He submits that writ petition was admitted
by this Court on 3rd September 2013. He invited our
attention to the order dated 13 th September, 2013
passed by this Court while admitting the writ petition
refuse to grant ad- interim relief.
11 ] It is submitted by the learned Counsel that since
the entire election process initiated by the respondent
No.4 was totally illegal and was contrary to the Section
341(B) of the said Act, the election result of the
respondent Nos. 5 to 21 shall be declared as illegal and
requires to be set-aside. The petitioner is entitled to
challenge the said illegalities committed by the
respondent Nos.1 to 4 by filing this writ petition and to
seek various reliefs.
12] It is submitted that in any event since the writ
petition has been already admitted by this Court and
since the petitioner was even permitted to carry out the
amendment in the writ petition, the respondents cannot
W.P. 9286-2012
be allowed to raise a plea in the affidavit in reply that the
writ petition is not maintainable at this stage. In support
of this submission, the learned counsel for the petitioner
placed reliance on the judgment of the Supreme Court in
the case of K. Venkatchalam Vs. A.Swamickan (AIR
1999 SC 1723) the judgment of this court in case of
Baburao Wadikar Vs. State (1985(2) BCR 655) and the
judgment of this court in the case of Baburao Koli Vs.
State (2007(6) BCR 6.)
13] Mr. Y.G. Gujrathi, learned AGP for respondent
Nos.1 and 3, invited our attention to the Section 341 (B)
(4) of the said Act. He placed reliance on Sections 9 and
10 of the said Act and submits that these provisions
provide for composition of the Councillors and
development of Municipal area into wards and
reservation of the wards for women amongst schedule
castes and scheduled tribes and are also required to be
applied to the election to Nagar Panchayat under Section
341 (B) of the said Act. He invited our attention to the
W.P. 9286-2012
letter of objection filed by the petitioner with respondent
No.3 and would submit that no objection was raised by
the petitioner before the respondent No.3 that one voter
in a ward could not have been allowed to cast more than
one vote in favour of different candidates in the multiple
wards. He submits that those objections raised by the
petitioner cannot be allowed to be raised by this Court
across the bar. Learned AGP invited our attention to the
draft order issued by the State Election Commission
prescribing general description of the wards and seats
reserved for each of the ward in respect of those 17
wards. He submits that no illegality is committed by the
authorities.
14] Mr. A.D. Pawar, learned counsel for the respondent
No. 5 to 8, 14 to 17 and 21 also invited our attention to
the letter of objection raised by the petitioner before the
respondent No.3 and submits that the issue of one voter
having allowed to cast more than one vote in the same
election, was not raised in the said letter of objection. It
is submitted that on 13.06.2017, the State Election
W.P. 9286-2012
Commission has already issued fresh notification for
ward formation. Objections were invited on 24th June
2017. On 5th August, 2017, the Collector has already
decided the objection raised by various parties. He
submits that the elections are likely to be held in the
month of October, 2017 and thus interference with the
election already held on 14th January 2013, can not be
permitted this Court at this stage.
15] Mr. D.S. Bagul, learned counsel for the
Respondents No. 9 to 13 and 18 to 20 adopted the
submissions made by the learned counsel for respondent
No. 5 to 8, 14 to 17 and 21.
16] Mr. S.T. Shelke, learned counsel for the
Respondent No.4 i.e. State Election Commission,
submits that, election to Nagar Panchayat Shindkheda
was held in the year 2012. The petitioner had submitted
his objections, which were dealt with in detail by the
respondent No.3 and rejected. The petitioner was
present for the hearing on 18th October, 2010 before the
W.P. 9286-2012
respondent No.3. He was heard by the respondent No.3.
The learned counsel invited our attention to the
documents at Exh 'F' to the petitioner showing the name
of the petitioner and his signature at Sr. No.5 on the said
document.
17] Learned counsel for the respondent No.4 invited
our attention to the order dated 02 nd October, 2012
passed by the respondent No.3 for formation of various
wards by exercising powers under the said Act and also
to the draft order under Section 9 of the said Act. He
submits that there were 17 wards specified in the order
passed by the respondent No.3 for the said Nagar
Panchayat Shindkheda election. There were 17
candidates elected for those 17 wards, which was in
compliance with Section 341(B)(3). He submits that,
there is no provision in the said Act prescribing any
restrictions on voters to cast more than one vote in case
of there being multiple wards. He submits that said
order passed by respondent No.3 was published in the
Gazette. There were therefore, 17 wards for which
W.P. 9286-2012
seventeen councillors were elected.
18] The learned Counsel for the respondent No.4 also
invited our attention to the result of the successful
candidate in the said Nagar Panchayat Shindkheda for
the year 2012. He submits that, 17 wards were
announced by the respondent No.3 under four '
Prabhag'. He placed reliance on Article 343(B) and 343(C)
of the Constitution of India. He also placed reliance on
Section 341(A), 341(B) & 341(C) of the said Act. He also
invited our attention to the Article 243 ZG of the
Constitution of India and submits that there is a
complete and absolute bar in considering any matter
relating to the Municipal Election on any ground
whatsoever after the publication of the notification for
holding Municipal elections.
19] It is submitted that the only remedy of the
petitioner for challenge the election was by way of filing
election petition and not a writ petition. In support of
this submission, learned Counsel for the Respondent
W.P. 9286-2012
No.4 placed reliance on the decision of Supreme Court in
Anugrah Narain Singh and another Vs. State of U.P and
others 1997(1) Mh.L.J 132 (SC) and in particular para
Nos. 12 and 24. He submits that the issue relating to
the Delimitation of the wards cannot be questioned in
the Court of law and more particularly in a writ petition.
He submits that formation of wards were finalized after
inviting and considering objections raised by various
parties including the petitioner and cannot be questioned
in the court of law after publication of notifiction.
20] Learned Counsel for the respondent No.4 also
placed reliance on the judgment of this court in the case
of Jadhav Shankar Dyandeo and another Vs. Collector,
Satara and another (2010(6) Mh.L.J. Page 109) and in
particular para Nos. 12 and 13 and would submit that
delimitation of area formed or wards formed by
respondent No.3 Collector cannot be entertained by this
Court in a writ petition. He submits that a writ petition
is totally barred in case of election dispute. The learned
W.P. 9286-2012
Counsel for the respondent No.4 distinguished the
judgment relied upon by learned counsel for the
petitioner. In so far as the judgment of the Supreme
Court in case of K.Venkatachalm Vs. A.Swamickan
(supra) relied upon by learned Counsel for the petitioner
is concerned, it is submitted by the learned Counsel that
facts before the Supreme Court in the said judgment
were totally different. The Supreme Court held that when
a disqualified person is elected, bar of jurisdiction of the
Court does not apply.
21] In so far as the judgment of this Court in the case
of Baburao Shankarrao Wadikar and others Vs. State of
Maharashtra and others (supra) relied upon by learned
Counsel of petitioner is concerned, it is submitted that
the said judgment was delivered by this Court prior to
the constitutional amendment i.e. Article 243 and 243-
ZA in the Constitution of India and thus is clearly
distinguishable.
22] In so far as the judgment of this Court in case
W.P. 9286-2012
of Baburao Kalu Koli Vs. State of Maharashtra and others
2007(6) Bom.C.R.6 relied upon by the petitioner is
concerned, the learned counsel for the respondent No.4
distinguished the said judgment on the ground that the
facts before this court in the said judgment were totally
different. Division bench of this Court dealt with the
provision of Bombay Village Panchayats ( Number of
Members, Divisions into Wards and Reservation of Sea)
Rules. 1966 The foundation of challenge to election was
based on manipulations.
23] Learned Counsel for the respondent No.4 also
placed reliance on the notification dated 13th June, 2017
issued by Respondent No.4 and would submit that the
elections are due shortly and thus this Court shall not
interfere with election held as far back as on 14th
January 2013 at this stage.
REASONS AND CONCLUSIONS :-
24] A perusal of the record indicates that the
respondent No.3 had issued notification on 19-07-2012,
abolishing village Panchayat Shindkheda and
W.P. 9286-2012
constituting Nagar Panchayat by the State Government.
Process of formation of wards started on 13th September,
2012. Objections were invited by the respondent No.3 to
the draft proposal of formation of wards from the voters.
The petitioner has submitted his objection on 16-10-
2012 on eight grounds. The petitioner did not raise any
objection before the respondent no.3 that one voter in a
ward cannot be allowed to cast more than one vote in
different wards. The respondent No.3, after hearing the
petitioner as well as other objections, rejected the
objections by passing a detailed order. The elections
thereafter are held by the respondent No.4. It is not in
dispute that the petitioner did not raise any such
objection about the number of votes allowed to be cast by
voters before the respondent No.3.
25] A perusal of the order dated 03rd September, 2013
passed by this Court while admitting the writ petition
indicates that this Court has recorded that challenge in
the petition is only on the ground that a voter is not
entitled to cast 3 votes and was expected to cast only one
W.P. 9286-2012
vote, the petitioner has put in total 3 votes and thus two
of his votes need to be ignored. This Court also noticed
that the petitioner was a voter and had not contested the
election and had also cast three votes.
26] It is thus clear that the petitioner did not advance
any other submissions before this Court other than the
submissions that voters were not entitled to cast three
votes and other two votes were required to be ignored.
Admittedly, this ground is not even raised in the writ
petition. A perusal of the additional affidavit filed by the
petitioner before this Court on 3 rd March, 2017, clearly
indicates that the petitioner himself has admitted that
the name of the petitioner was included in Ward No.4
and he did allegedly cast five votes to elect five different
candidates/councilors. Same process was alleged to have
been permitted in all four wards and one voter was
permitted to cast more than one vote to elect more than
one Councilors. The petitioner admittedly did not raise
this objection before the respondent No.3, and on the
contrary, had alleged to have casted five votes to elect
W.P. 9286-2012
five different Councilors as admitted by the petitioner in
the said additional affidavit filed before this Court.
27] The petitioner could not point out any proof to
show that the 17 wards formed by the respondent no.3
were illegal or that petitioner could not have cast more
than one vote. The petitioner could not demonstrate
before this Court that he was actually allowed to cast
more than one vote to elect more than one
candidate/councilor or that he had actually voted for five
candidates. We are thus not inclined to accepts this
objection raised by the petitioner firstly at the stage of
admission and now across the bar at the stage of final
hearing. This Court cannot even otherwise go into this
factual issue as to whether the petitioner was in fact
allowed to cast more than one vote or not in this writ
petition for want of pleadings and proof.
Under section 341(B) of the said Act it is clearly
provided that
(i) A Nagar Panchayat shall consist of seventeen
directly elected Councillors.
W.P. 9286-2012
(ii) For the purpose of elections a transitional area
shall be divided into such number of territorial
constituencies, to be known as wards, as there are
Councillors.
28] It is thus clear that based on these provisions, the
Collector had formed 17 wards by dividing transitional
area into number of four constituencies knowing as
wards to match with the number of councilors required
to be elected from each ward. It is not the case of the
petitioner that more than 17 Councilors were declared
elected for those 17 wards formed under Section 341 (B)
(2). In our view the said provision under Section 341(B)
of the said Act has to be read with sections 9 and 10 to
the extent provided in section 341(B)(4) which in this
case is fully satisfied by the respondent No.3 and 4.
29] Article 243-ZA of the Constitution of India provides
complete and absolute bar in considering any matter
relating to the Municipal Election on any ground
whatsoever after the publication of the notification for
W.P. 9286-2012
holding Municipal Election. The Supreme Court in the
case of Anugrah Narain Singh and another Vs. State of
U.P and others (supra) has considered this issue in detail
and held that the said bar imposed by Article 243-ZA is
two-fold. Validity of laws relating to delimitation and
allotment of seats made under Article 243-ZA cannot be
questioned in any Court. No election to a Municipality
can be questioned except by an election petition. It is
held that if the election is imminent or well under way,
the Court should not intervene to stop the election
process, and 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.
30] In our view, the judgment of the Supreme Court in
case of Anugrah Narain Singh and another Vs. State of
U.P and others (supra) is squarely applicable to this case.
We are respectfully bound by this judgment. The
election process was already started when the petitioner
filed this writ petition. During the pendency of this writ
W.P. 9286-2012
petition, the results were already declared. The term of
the elected councilors is likely to be over. There was no
interim relief granted by this Court. In our view this writ
petition is this not maintainable in respect of the reliefs
as claimed.
31] In so far as submissions made by the learned
Counsel for the petitioner that since this Court has
already admitted this writ petition and has also granted
leave to the petitioner to amend the writ petition by
impleading elected candidates as respondents to the
petition and thus writ petition cannot be dismissed on
the ground of alternative remedy is concerned, in our
view, filing of election petition was the only remedy
available to the petitioner which was not an alternate
remedy. Filing of this writ petition itself was not
maintainable at the threshold. Various judgment thus
relied on by learned counsel for the petitioner in support
of submissions that since the writ petition was admitted
and the petitioner was allowed to amend the writ petition
the same cannot be dismissed on the ground that
W.P. 9286-2012
alternative remedy exists, would not assist the case of
the petitioner.
32] The respondent No.4 has already issued a
notification dated 13th June, 2017 announcing election.
The objections have been already invited on 24th July,
2017 for formation of new wards and also decided on 05th
August, 2017. The elections are likely to be held shortly.
It is not in dispute that by the said notification dated 13 th
June, 2017, the respondent No.4 has now even otherwise
declared that councilor shall be elected in respect of
each ward. In these circumstances we are not inclined to
grant any relief in respect of election held in the year
2012 for Nagar Panchayat, Shindkheda at this stage.
33] Be that as it may, in our view, whatever
objections, were raised by the petitioner were already
decided by the respondent No.3 after giving hearing to
the petitioner and this Court not having found any
infirmity with the said order, no interference with the
result of election declared on 14 th January, 2013 is
W.P. 9286-2012
warranted. The petitioner himself has claimed to have
casted five votes to get five different candidates elected,
cannot be allowed to raise this issue across the bar or
even otherwise. The judgment in case of Anugrah
Narain Singh and another Vs. State of U.P and others
(supra) delivered by the Supreme Court and in the case
of Jadhav Shankar Dyandeo and another Vs. Collector,
Satara and another delivered by this Court do not assist
the case of the petitioner. In our view, the petition is
totally devoid of merit and does not warrant any
interference, We therefore, pass the following order.
ORDER
Writ Petition No. 9286 of 2012 is dismissed.
Rule is discharged. There shall be no order as to costs.
(SUNIL K. KOTWAL) ( R.D. DHANUKA)
JUDGE JUDGE
YSK/
