Bombay High Court
The Gram Panchayat Padhegaon ... vs The State Of Maharashtra Through ... on 1 April, 2021
Bench: S.S. Shinde, Makarand Subhash Karnik
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Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 3469 OF 2020
(transferred from Aurangabad Bench)
Sau.DURGESHWARI RAJESH KALE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS. ..RESPONDENTS
Mr. V D Salunke for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w. Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3466 OF 2020
(transfer from Aurangabad Bench)
VARSHARANI w/o DILIP MANE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS ..RESPONDENTS
Mr.Balaji Yenge for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3464 OF 2020
(transfer from Aurangabad Bench)
RANJANA w/o SUGRIV BORULE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS ..RESPONDENTS
1/34
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Mr. Balaji Yenge for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3465 OF 2020
(transfer from Aurangabad Bench)
DAUD RASHID BIRADAR ...PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS ... RESPONDENTS
Mr. S.S. Thombre for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w. Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3427 OF 2020
(transfer from Aurangabad Bench)
MANIK MADHAVRAO WAGHMODE .. PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS. ..RESPONDENTS
Mr. Balaji Yenge for the petitioner.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
2/34
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ALONG WITH
CIVIL WRIT PETITION NO. 3350 OF 2020
(transferred from Aurangabad Bench)
THE GRAMPANCHAYAT PADHEGAON
THROUGH ITS SARPANCH
KRITI PRASHANT LIPTE ...PETITIONER
V/S.
STATE OF MAHARASHTRA & ORS. ...RESPONDENTS
Mr. V D Salunke for the petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3364 OF 2020
(transferred from Aurangabad Bench)
MANISHA W/O AJINATH DHAMANE & OTHERS...PETITIONERS
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3461 OF 2020
(transferred from Aurangabad Bench)
FATRODDIN BISMIL BALDUNDE .. PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
3/34
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Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3455 OF 2020
(transferred from Aurangabad Bench)
GRAMPANCHAYAT VIDOLI B.K.
THROUGH ITS SARPANCH
RAMKISAN VISHWAMBHARRAO AWACHAR
& OTHERS ... PETITIONERS
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3375 OF 2020
(transferred from Aurangabad Bench)
UTTAMBAI W/O BABURAO PADILE .... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
4/34
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ALONG WITH
CIVIL WRIT PETITION NO. 3457 OF 2020
(transferred from Aurangabad Bench)
DAUD RASHID BIRADAR .... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3394 OF 2020
(transferred from Aurangabad Bench)
MAHANANDA W/O DNYOBA MURALE ... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION STAMP NO. 239 OF 2021
(CIVIL LDVC-CW NO. 688 OF 2020)
(transferred from Nagpur Bench)
MANISHA MAHADEO INGLE ... PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Anant Thotange for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
5/34
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ALONG WITH
CIVIL WRIT PETITION NO. 3502 OF 2020
(transferred from Aurangabad Bench)
JYOTI SANJAY GHUGE & OTHERS ...PETITIONERS
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. S S Thombre for the Petitioners.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3503 OF 2020
(transferred from Aurangabad Bench)
VIJAYA W/O PRALHAD TAGARE .. PETITIONER
V/S
STATE OF MAHARASHTRA & ORS ...RESPONDENTS
Mr. Balaji Yenge for the Petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3504 OF 2020
(transferred from Aurangabad Bench)
SARPANCH SEVA SANGH
THROUGH ITS GENERAL SECRETARY
BABASAHEB YADAVRAO PAVASE ...PETITIONERS
V/S
STATE OF MAHARASHTRA ...RESPONDENT
6/34
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Mr. S S Thombre for the Petitioners.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr. Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION STAMP NO.92485 OF 2020
BHAUSAHEB KARBHARI KALASKAR & ORS. .. PETITIONERS
V/S.
STATE OF MAHARASHTRA & ORS .. RESPONDENTS
Mr. Vaibhav D. Kadam for the petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION STAMP NO.92489 OF 2020
THE GROUP GRAMPANCHAYAT,
NIMBHORA, GALWADA & MHASHIKOTHA
THROUGH ITS SARPANCH
ASHOK S/O PRABHAT AHIRE .. PETITIONER.
V/S.
STATE OF MAHARASHTRA & ORS .. RESPONDENTS
Mr. Pramod C. Mayure for the petitioner.
Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w, Ms. Nisha Mehra, AGP for the respondent-
State.
Mr. Ajit Kadethankar for State Election Commission.
ALONG WITH
CIVIL WRIT PETITION NO. 3442 OF 2020
(transferred from Aurangabad Bench)
VIJAY S/O BABURAO AHER & ORS. .. PETITIONERS
V/S.
STATE OF MAHARASHTRA & ORS .. RESPONDENTS
7/34
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Mr. Ravindra Gore for the petitioners.
Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr.Akshay
Shinde, 'B' Panel a/w. Ms. Nisha Mehra, AGP for the respondent -
State.
Mr. Ajit Kadethankar for State Election Commission.
CORAM : S. S. SHINDE,
M. S. KARNIK, JJ
RESERVED ON : 07th SEPTEMBER, 2020
PRONOUNCED ON : 01st APRIL, 2021
JUDGMENT :
. Rule. Rule made returnable forthwith. Heard fnally
with the consent of the learned Counsel appearing for the
parties.
2. By these Petitions under Article 226 of the
Constitution of India, the petitioners are challenging Maharashtra
Ordinance No. X of 2020 dated 25/06/2020; Government
Resolution (for short 'GR') dated 13/07/2020 issued by Rural
Development Department, Maharashtra State; the Circular dated
14/07/2020 issued by Rural Development Department,
Maharashtra State.
THE BACKGROUND FACTS
3. The term of about 14,234 Village Panchayats in the
State of Maharashtra was to expire between the period from
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01/04/2020 upto 31/12/2020. Clause (1) of Article 243E of the
Constitution of India provides that every Panchayat, unless
sooner dissolved under any law for the time being in force, shall
continue for fve years from the date appointed for its frst
meeting and no longer. Clause (3) (a) of Article 243E provides
that an election to constitute a Panchayat shall be completed
before the expiry of its duration specifed in clause (1). In view
of the constitutional mandate, the State Election Commission
was obliged to conduct the general elections before the expiry of
their terms as provided by Article 243E. However, due to the
outbreak of Covid-19 pandemic, it became impossible for the
State Election Commission to conduct such elections. Hence,
considering the emergency situation, the State Election
Commission decided to postpone these elections until further
orders. In order to ensure that the ofces of the Village
Panchayats do not remain vacant and to ensure the day to day
functioning of the Village Panchayats is not impeded, the State
Election Commission called upon the State Government to
appoint Administrators over all such Village Panchayats by
communications dated 20/04/2020 and 01/06/2020.
4. The State Government promulgated an
Ordinance on 25/06/2020 being Maharashtra Ordinance No. X of
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2020 ('Ordinance' for short) whereby it introduced an
amendment to section 151(1) (a) of the Maharashtra Village
Panchayats Act, 1959 (for short 'said Act'). By this Ordinance,
proviso was added to section 151(1)(a) to enable the State
Government to appoint a 'suitable' person as an Administrator
over the Village Panchayats whose elections could not be held by
the State Election Commission as per schedule due to natural
calamity or emergency or war or fnancial emergency or
administrative difculties or epidemic disease.
5. Prior to the issuance of this Ordinance, there
was no provision in the Act for appointing Administrator to the
Village Panchayats if the elections could not be held as per
schedule due to natural calamity or such other contingencies
which are beyond human control. The only provision to appoint
Administrator over the Village Panchayat existed under section
151(1)(a) of the said Act enabling the State Government to
appoint an Administrator only when it was dissolved by the State
Government in the contingency where it appeared to the State
Government that the Panchayat has not been validly constituted
under the Act requiring its dissolution, but not otherwise.
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6. In exercise of powers conferred by the
Ordinance, the State Government issued a Government
Resolution ('GR' for short) dated 13/07/2020 authorising the
Chief Executive Ofcers of the Zilla Parishad to appoint any
'suitable' person as an Administrator on such Village Panchayats
upon consultation with the Guardian Minister of the respective
districts.
7. Before we proceed to deal with the submissions
of learned Counsel for the petitioners on merits, it would be
necessary to refer to the statement of learned Advocate General
that no 'private individual' will be appointed as an Administrator
and further that only such person will be appointed as
Administrator who is already working as a "government ofcer /
servant" till the Panchayats are constituted after holding
elections.
8. In view of the statement made by learned
Advocate General, learned Counsel for the petitioners submit
that though the controversy arising in the present Petitions has
narrowed down considerably, however, they submit that
appointing a government ofcer/servant as an Administrator is
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unwarranted and not necessitated. According to them, having
regard to the constitutional scheme envisaging Panchayat Raj
pursuant to which the said Act came to be enacted, it would be
appropriate if the existing Panchayat whose term of 5 years is to
come to an end (existing elected body for short) is
continued/appointed as Administrator in the interregnum till the
elections are held. In support of their submissions that the
existing body of the Village Panchayat should be continued /
appointed as Administrator, they made the following
submissions. Since same issue is involved in all these Petitions,
the submissions as made by learned Counsel in diferent Petitions
are thus :-
SUBMISSIONS OF LD. COUNSEL FOR PETITIONERS
9.1 Reference is made to Article 40 of the directive
principles of the State policy in the Constitution of India which
provides that the State shall take steps to organize Village
Panchayats and endow them with such powers and authority as
may be necessary to enable them to function as units of self-
government.
9.2 Inviting our attention to Chapter IX of the
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Constitution of India which provides for "Panchayats", learned
Counsel would submit that in furtherance of the constitutional
scheme and with a view to establishing Village Panchayats for
every village or group of villages and vesting them with such
powers and authority as may be necessary to enable them to
function as units of local self government and developmental
activities in rural area, the State Government enacted the
Maharashtra Village Panchayats Act, 1959.
9.3 Inviting our attention to section 27 of the said Act,
learned Counsel submit that even the members of a Panchayat
constituted upon its dissolution before the expiration of its
duration shall continue only for the remainder of the period for
which the members of the dissolved Panchayat would have
continued under sub-section (1) had it not been so dissolved. The
only situation for appointment of an Administrator contemplated
under section 151 was in respect of the Village Panchayat which
had not been validly constituted under the said Act. Learned
Counsel urged that even in such a situation election has to be
notifed immediately and the Panchayat had to be re-constituted
enabling the freshly elected body to take over the afairs of the
Panchayat.
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9.4 It was obligatory for the State Election Commission to
have conducted the elections before the expiry of the term.
There has been failure on the part of the State Election
Commission to hold the elections. It is urged that this failure on
the part of the State Election Commission can never be to the
detriment of the elected body. The submission is that had the
State Election Commission conducted the elections before the
expiration of the term of Panchayat, the situation warranting
appointment of Administrator would not have arisen. The
argument of learned Counsel is that when the constitutional
scheme as well as the said Act provide for afairs of the
Panchayat to be managed by a duly elected body, then, the only
option to deal with such a situation is to continue the existing
Panchayat or appoint members of the existing Panchayat as
Administrator. The object of establishing a Panchayat is to
enable an elected body to function as units of a local self
government and administer the Village Panchayats. The
appointment of an Administrator in the interregnum would defeat
the object of constituting a Panchayat and would be contrary to
the provisions of the Constitution and the said Act.
9.5 It was never the contemplation of the Constitution or
the said Act to allow any person other than the elected body to
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administer the afairs of the Panchayat. Though learned
Advocate General has made a statement clarifying the stand of
the State Government as regards appointment of a government
ofcial/ servant as Administrator, even then, the situation is not
redressed as government ofcial/servant cannot be equated with
an elected body. That there are no allegations of misuse or
arbitrary exercise of powers against the existing Panchayat and
therefore there is no reason why the existing body which has the
necessary experience and expertise to administer the afairs of
the Panchayat should not continue/ be appointed as
Administrator in the interregnum.
9.6 To support the submission that existing body be
continued / appointed, a reference is made to the issuance of
notifcations continuing the existing boards of the Co-operative
Societies under Maharashtra Co-operative Societies Act and
market committees under the Agricultural Produce Market
Committees Act after the expiry of their term. According to them
if the State Government has decided to continue the existing
bodies of the Co-operative Societies and also that of the market
committees despite their term of ofce having come to an end,
there was no reason for the State Government to have adopted a
diferent approach in respect of the Village Panchayats. Learned
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Counsel distinguished the decision of this Court relied by the
learned Advocate General in the case of 1State of Maharashtra
Vs. State Election Commission and ors. (hereinafter referred
as State of Maharashtra - 2) by contending that at the relevant
time when the matter was decided by this Court, there was no
statutory provision for appointment of an Administrator in case
of failure to hold elections in a contingency of this kind.
According to them now that there is a provision for appointment
of Administrator in view of the Ordinance, the decision of this
Court will have no application in the changed scenario.
9.7 Learned Counsel submits that the only way to deal
with this situation thereby fulflling the object of the constitution
and the enactment would be to appoint the existing elected body
as an Administrator. According to learned Counsel only the
existing elected body would fulfll the criteria of 'suitable' person
to be appointed as an Administrator on the Village Panchayats in
a surprise situation of this kind.
SUBMISSIONS OF LEARNED ADVOCATE GENERAL
10.1 Learned Advocate General Shri Kumbhakoni on the
other hand invited our attention to the detailed afdavit-in-reply
1 2006(1)Mh.L.J 131
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fled on behalf of the State Government in support of his
submissions. Relying on Article 243E of the Constitution he
would submit that every Panchayat shall continue for fve years
from the date appointed for its frst meeting and no longer.
Emphasizing on the words 'no longer' in Article 243E, learned
Advocate General submitted that in view of the clear
constitutional mandate, it is impermissible for the existing
Panchayat to continue after the completion of its term of fve
years. According to him, if for reasons beyond the control of the
State Election Commission holding of election is not possible, the
existing elected body whose term has expired has no legitimate
right to continue as Administrator.
10.2 Mr. Kumbhakoni then submitted that in view the
decision of this Court in Writ Petition No. 5234 of 2005 dated
10/08/2005 in the case of State of Maharashtra Vs. State
Election Commission and ors (hereinafter referred to as State
of Maharashtra - 1) and also in view of the decision in the case of
'State of Maharashtra - 2', the issue is no longer resintegra. He
submitted that even when the provision for appointment of
Administrator beyond the expiry of the constitutional term of fve
years did not exist, this Court held that the State Election
Commission could step in and in exercise of its powers under
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Article 243K, an Administrator could be appointed in such a
situation. He would submit that even then the State Election
Commission had appointed government ofcials as Administrator.
10.3 Mr.Kumbhakoni would then submit that the
petitioners claim of parity between Village Panchayats on the one
hand and on the other, the Co-operative Societies, Agricultural
Produce Market Committees is unsustainable. According to him,
Co-operative Societies and APMC function in diferent spheres
and are constituted under separate enactments altogether.
Moreover, the provision like Article 243E of the Constitution
prohibiting the continuance of the existing Panchayats after the
expiry of its term is not present in respect of Co-operative
Societies or Agricultural Produce Market Committees.
10.4 Learned Advocate General contended that the State
Election Commission requested the State Government to appoint
an Administrator. Pursuant to this direction, the State took a
decision to appoint a 'suitable' person as an Administrator by
promulgating the Ordinance. According to him now that State
Government having decided to appoint government
ofcial/servant as Administrator, the petitioners cannot seek a
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relief which would be directly contrary to the law laid down by
this Court in 'State of Maharashtra -2'.
10.5 He would moreover submit that the State
Government having decided to appoint Administrator pursuant to
the directions of the State Election Commission, then in the
absence of challenge to these directions of the State Election
Commission, the petitioners are not justifed in seeking the relief
they have prayed for. Learned Advocate General would further
submit that powers under section 151 of the said Act are very
wide which would include even power to appoint a 'suitable'
person in the eventuality of there being a vacuum of the present
nature. Learned AG would thus submit that in view of the
decision of this Court in the case 'State of Maharashtra - 2',
the issue stands concluded and the existing Panchayats cannot
seek continuance / appointment as Administrator till the new
Panchayat is constituted.
SUBMISSIONS OF LEARNED ADVOCATE FOR
STATE ELECTION COMMISSION
11.1 Learned Counsel Shri Kadethankar invited our
attention to the afdavit-in-reply fled on behalf of the State
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Election Commission. He would submit that the stand of the
State Election Commission continues to be the same as it was in
2005. He would submit that a 'suitable person' would mean a
government ofcial/servant. He says that the State Election
Commission still persists with its stand taken before this Court in
the decision 'State of Maharashtra -2', that no private
person/body of persons could be appointed as Administrator on
the Village Panchayats under any circumstance. He would
submit that no person other than a government ofcer be
appointed as Administrator in any circumstance to ensure free,
fair and impartial elections and for maintaining the purity of the
electoral process. According to him, continuation of existing
elected body/ ofce bearers beyond the term of Panchayat is not
at all permissible.
11.2 He submits that appointment of the outgoing ofce
bearers (existing elected body) and members of the Village
Panchayats as Administrator is a concept hostile to the
constitutional scheme under Chapter IX of the Constitution. It is
the stand of the State Election Commission that amendment to
section 151(1)(a) of the Bombay Village Panchayats Act, 1958 as
envisaged in Ordinance X of 2020 may be read down in terms of
the standing instructions of 2005 and in terms of the judgment
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passed by this Court in State of Maharashtra - 2 (Writ Petition
No. 6405 of 2005) holding that the term 'suitable' person means
a government ofcer.
12. Heard learned Counsel for the petitioners,
learned Advocate General Shri Kumbhakoni for the State
Government and Shri Kadethankar appearing on behalf of State
Election Commission at length. We have perused the Petitions
and afdavit-in-replies fled on behalf of the State Government as
well as State Election Commission.
CONSIDERATION
13. At the outset we may state that though the
Petitions are fled for quashing the impugned Ordinance and the
consequent GRs/Circulars dated 13/07/2020, 14/07/2020 and the
notifcation dated 27/07/2020, having regard to the statement
made by the learned Advocate General during the course of the
hearing, learned Counsel for the petitioners have restricted their
challenge to the appointment of government ofcials/servants as
Administrator instead of continuing/appointing the existing
elected body or its ofce bearers whose term has expired as
Administrator. It would be necessary to reproduce the relevant
portion of the statement made by learned Advocate General on
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the last date of hearing which reads thus :
"3) In paragraph no. 51 of the afdavit fled on behalf of
the State dated 13th August, 2020 in Writ Petition No. AS-DB-
LD-VC-188 of 2020, which is to be considered as common
afdavit in the present group of matters, the State
Government has made submissions, in as much as, the
'suitable person' to be appointed as an Administrator in
terms of the aforesaid Ordinance in issue, is concerned. In
terms of the contents of the said paragraph the
administrator to be appointed is to be 'preferably' inter-alia
one amongest the following Government ofcers :
1) Extension Ofcer (Agriculture)
2) Extension Ofcer (Health)
3) Extension Ofcer (Education)
4) Extension Ofcer (Panchayat)
Clause (e) of the said paragraph 51 i nter alia states that only
in case none of the aforesaid Government servant is
available, for being appointed as such an Administrator, 'a
private' individual may be appointed as an administrator.
5) This is to make it clear that, despite the aforesaid
contentions raised in the afdavit, in view of the aforesaid
peculiar situation and the circumstances narrated in all the
paragraphs hereinabove, the State shall not make
appointment of 'a private individual' as an Administrator, in
terms of the aforesaid Ordinance dated 25 th June, 2020 and
the Government Resolution dated 13th July, 2020, in issue in
the present group of matters. It is further clarifed that, in
terms of the aforesaid Ordinance and the Government
Resolution only such person will be appointed as an
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Administrator who is already working as 'a Government
Ofcer/Servant'.
6) In this regard, it is also pertinent to note that in
terms of the aforesaid Ordinance and the Government
Resolution, so far, Administrators have been appointed over
total 4,899 Village Panchayats and that in none of these
cases 'a private person' has been appointed as an
Administrator. In other words over all these 4,899 Village
Panchayats, only such persons have been appointed as
Administrators who are already working as Government
Ofcer/Servant.
7) It is hereby specifcally clarifed that, this Statement
should and ought not to be read and considered either in
respect of appointment of Administrators under various
Statutes other than Maharashtra Village Panchayat Act or
even under the Maharashtra Village Panchayat Act generally,
as the same is made in view of the aforesaid peculiar
situation and is restricted to the appointment of
Administrators only in terms of the Ordinance dated 25 th
June, 2020 and the Government Resolution dated 13 th July,
2020, which are in issue in the present group of matters,
during the prevailing COVID-19 pandemic."
14. The controversy in the present Petitions has
now narrowed down to the petitioners claim of seeking
appointment/continuation of the existing elected body as
Administrator in the interregnum till the new Panchayat is
constituted. That the present pandemic warrants appointment of
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Administrators to 14234 Village Panchayats whose term is
coming to an end between the period 01/04/2020 to 31/12/2020
is not in dispute in the present group of Petitions. The State
Election Commission commenced the pre-election process in
respect of Village Panchayats whose term was to expire. The
pre-election process comprises of ward formation, delimitation,
preparation of voters list etc. Article 243K(3) requires the State
to arrange the entire machinery to enable the State Election
Commission for conducting Panchayat elections.
15. Due to the outbreak of Covid-19 pandemic, by its
letter dated 17/03/2020, the State Government informed the
State Election Commission that arrangement of the machinery
and manpower for conducting any elections was not possible as
those resources would be required to contain the spread of
deadly Covid-19 virus. The State Election Commission upon
considering the request of the State Government decided to put
on hold all the ongoing elections and pre-election processes
concerning the Panchayats at the stages where they were and
postponed all forthcoming elections until further orders.
Considering that the terms of the Panchayats were set to expire,
the State Election Commission by letters dated 20/04/2020 and
01/06/2020 instructed the State Government to appoint proper
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Administrators for the Panchayats before expiry of their
respective terms.
16. The State Government then issued the
impugned Ordinance seeking to incorporate a proviso to section
151 (1)(a) of the said Act. The amendment empowered the State
Government by notifcation to appoint a 'suitable' person as an
Administrator over the Village Panchayats that fall vacant on
account of not holding regular elections for any of the reasons of
natural calamity, pandemic or emergency or war or economic
emergency or administrative inabilities etc. The State
Government issued GR dated 13/07/2020 whereby powers to
appoint a 'suitable' person as an Administrator came to be
delegated to Chief Executive Ofcers (for short 'CEO') of Zilla
Parishad of the State. The GR mandates CEOs to cause such
appointment with the advise of the local Guardian Minister. By a
Circular dated 14/07/2020, the qualifcations, disqualifcations,
powers, duties, remunerations and privileges etc. were laid down
in respect of appointment of an Administrator.
17. Article 243-E(1) of the Constitution provides
that every Panchayat unless sooner dissolved under any law for
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the time being in force, shall continue for fve years from the
date appointed for its frst meeting and no longer. Clause (3)
thereof provides that an election to constitute a Panchayat shall
be completed (a) before the expiry of its duration specifed in
clause (1). The said Act contains provisions in regard to the
holding of elections to Panchayats that implement the mandate
of the constitutional provisions. Section 11(1)(b) provides that an
election to constitute a Panchayat shall be completed before the
expiry of its duration of fve years as prescribed in sub-section (1)
of Section 27. Section 27 provides that the members of a
Panchayat shall, save as otherwise provided in the Act, hold
ofce for a term of fve years.
18. The statutory provisions thus stipulate that the
term of ofce of a Panchayat is for a period of fve years from the
date of the frst meeting and no more. The term of around 14234
Village Panchayats in question is set to expire upon the
completion of a duration of fve years during the period from
01/04/2020 to 31/12/2020. The State Election Commission called
upon the State Government to appoint Administrator. The powers
of the State Election Commission extend to the superintendence,
direction and control of the preparation of electoral rolls and the
conduct of all elections to the Panchayats. The provisions of
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Article 243-K are pari materia to those of Article 324 of the
Constitution which have been interpreted in several judgments of
the Supreme Court. Article 243-K operates in areas left
unoccupied by the legislation. The words 'superintendence,
direction and control' are indicative of the broad sweep of the
Constitutional provision. This is amplifed by the expression
"conduct of elections" in respect whereof the State Election
Commission exercises superintendence and control. In
Mohinder Singh Gill vs. Chief Election State Election
Commissioner, the Supreme Court emphasised that Article 324
of the Constitution is a plenary provision vesting the whole
responsibility for the conduct of elections in the State Election
Commission. The State Election Commission may be called upon
to answer unforeseen eventualities not contemplated by existing
legislation and its power of achieving the object of free and fair
elections cannot be stultifed. In this context, the following
observations of the Supreme Court are signifcant:
"Even so, situations may arise which enacted law has not provided
for, Legislators are not prophets but pragmatists. So it is that the
Constitution has made comprehensive provision in Article 324 to
take care of surprise situations. That power itself has to be
exercised, not mindlessly nor mala fde, nor arbitrarily nor with
partiality but in keeping with the guidelines of the rule of law and
not stultifying the Presidential notifcation nor existing legislation.
2 1978(1) SCC 405
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More is not necessary to specify, less is insufcient to leave
unsaid. Art 324, in our view operates in areas left unoccupied by
legislation and the words 'superintendence, direction and control'
as well as 'conduct of all elections', are the broadest terms. Myriad
maybes, too mystic to be precisely presaged, may call for prompt
action to reach the goal of free and fair election."
19. We may mention here that as the submissions raised
in these Petitions are by and large similar to the ones raised in
the decision of this Court in the case of 'State of Maharashtra - 2',
the said decision is extensively relied by us and some of the
paragraphs are verbatim reproduced in this judgment.
20. The provisions of Article 243E clearly sets out
that Panchayat can 'no longer' continue after the expiry of its
duration of fve years. The impugned Ordinance empowers the
State Government to appoint by notifcation in the ofcial
gazette, a 'suitable' person as an Administrator over the Village
Panchayats during the interregnum which is now clarifed to
mean government ofcial/servant.
21. We are unable to persuade ourselves with the
submissions advanced by learned Counsel for the petitioners that
after the issuance of the Ordinance, the decision in the case of
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'State of Maharashtra - 2' will no longer be applicable in the
present fact situation. By the impugned Ordinance what the
State Government has done is to empower it to appoint
Administrators in the interregnum. This statement made by
learned Advocate General on behalf of the State Government is
in consonance with the stand of the State Election Commission.
In exercise of powers of the superintendence under Article 243K
of the Constitution, the State Election Commission asked the
State Government to appoint Administrator to the Gram
Panchayat in the interregnum till the new Panchayat is
constituted. We do not fnd any infrmity with this approach of the
State Government once the State Government made a statement
which is in consonance with the stand of the State Election
Commission. The stand of the State Election Commission is
completely in conformity with the constitutional scheme
establishing Panchayat Raj and which is also upheld by this Court
in the case of 'State of Maharashtra -2' . The aspect regarding
consultation with the Guardian Minister in the matter of
appointment of Administrator is a subject matter of a separate
group of Petitions which we have dealt with independently.
22. The argument that existing Panchayats should
be continued/appointed during the interregnum till the new
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Panchayat is constituted on the principle of parity only because
the existing boards of Co-operative Societies and ofce bearers
of APMC are continued is fallacious. The Constitution has dealt
with the subject of 'Co-operative Societies' in Part IX-B whereas
subject of 'Panchayat' is dealt with under Part IX. Article 40 of
the directive principles of the State policy says that State shall
take steps to organise village panchayats and endow them with
such powers and authority as may be necessary to enable them
to function as units of self-government whereas Article 43B of
the directive principles of the State policy envisages that the
State shall endeavour to promote voluntary formation,
autonomous functioning, democratic control and professional
management of co-operative societies. The object of formation
of the Village Panchayat is diferent from that of the Co-operative
Societies. Moreover, Article 243E(1) of the Constitution
categorically provides that Panchayat can no longer continue
after the expiration of its duration of fve years which is absent in
case of Co-operative Societies/ APMC's. So read and understood,
the question of continuing/appointing the existing Panchayat as
Administrator on the expiry of its term does not arise as that
would be against the constitutional mandate and the provisions
of the said Act.
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23. We also do not fnd any merit in the argument of
learned Counsel for the petitioners that they are best suited to be
appointed as Administrators only because the existing elected
body have the necessary expertise and experience to
administrate the Panchayats. Any elected body has to adhere to
the mandate of the Constitution as Article 243E of the
Constitution provides that a Panchayat can no longer continue
after expiry of its duration of fve years, hence there can be no
question of appointing/continuing the petitioners as
Administrators since their term of fve years is over. In case of a
vacuum, it was for the Election Commission to step in, in the
exercise of its powers under Article 243-K. That is what the
Election Commission has done in the present case by directing
the State Government to appoint Administrators.
24. It is urged by learned Counsel that what they are
seeking is appointment of existing elected body as Administrator
as the Ordinance now permits the State Government to appoint
'suitable' person as Administrator. This according to them would
be in consonance with the constitutional scheme envisaging a
Panchayat Raj to be administrated by an elected body. The said
argument can only be stated to be rejected as what cannot be
achieved directly could not be done indirectly. We therefore do
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not fnd any merit in this submission of learned Counsel for the
petitioners.
25. The upshot of the above discussion is that the spread
of Covid pandemic led to a situation where it was not possible for
the State Government to complete the elections within the
duration of the term of fve years in respect of Village Panchayats
whose terms are to expire. Under Article 243E of the
Constitution, the Panchayats can no longer continue after its
duration of fve years. The constitutional vacuum is not
contemplated in the afairs of the State. The State Election
Commission has ensured that this vacuum is obviated by
directing the State to appoint Administrator for the interregnum
until new Panchayats are constituted. The State Government
introduced amendment to section 151(1) (a) whereby a proviso
was added to section 151(1)(a) enabling the State Government
to appoint a 'suitable' person as an Administrator over the Village
Panchayats whose elections could not be held by the State
Election Commission as per schedule due to natural calamity or
emergency or war or fnancial emergency or administrative
difculties or epidemic disease. There was considerable debate
over the term 'suitable' person. The State Government has now
made its stand clear that it would appoint government
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ofcer/servant as Administrator over these Panchayats till new
Panchayats are constituted. This stand of the State Government
is in consonance with that of the State Election Commission.
The Petitioners want the existing elected body to be
'Administrator' till the new body is constituted. The
appointment / continuance of the existing body as Administrator
after expiry of their term would be contrary to the mandate of
Article 243E of the Constitution & the said Act.
26. It is again clarifed that we have not dealt with the
issue of 'Consultation' with the Guardian Minister before the CEO
appoints an Administrator, as this is not the subject matter of
challenge raised by the Petitioners in these Petitions. This issue
is dealt with in a separate group of Petitions.
27. In the circumstances, we do not fnd any infrmity in
the decision of the State Government appointing government
ofcer/servant as Administrator. Consequently we fnd no merit
in the contention of the petitioners that the existing elected body
constituting the Panchayat whose term of 5 years is to expire
should be appointed/continued as Administrator till new
Panchayat is constituted. The Petitions shall accordingly stand
dismissed. Rule is discharged with no order as to costs.
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28. This order will be digitally signed by the Private
Secretary of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this order.
(M.S.KARNIK, J. ) (S.S.SHINDE, J.)
