Narayan Kalba Gaikwad vs The State Of Maharashtra And ...
2021 Latest Caselaw 2653 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                         WRIT PETITION NO.2778 OF 2021
 Narayan Kalba Gaikwad                        ... Petitioner.
          Versus
 The State of Maharashtra
 and others                                   ... Respondents.
                                  ....
 Mr. Sachin S. Deshmukh, Advocate for the Petitioner.
 Mr. A.R. Kale, A.G.P. for Respondent Nos. 1 and 2.
 Mr. A.B. Kadethankar, Advoate for respondent No.3.
                                  ....
                               CORAM : S.V. GANGAPURWALA AND
                                       SHRIKANT D. KULKARNI, JJ.

DATE : 10th FEBRUARY, 2021 PER COURT:-

1. The petitioner is elected as a Member of the Grampanchayat

Pethwadaj from the S.C. category. The post of Sarpanch of the said

Grampanhayat is reserved for S.C. (women) category. Earlier, when

the draws were made on 08.10.2020, the post of Sarpanch of the said

Grampanhayat was reserved for S.C. The petitioner assails the change

of the reservation for the post of the Sarpanch.

2. Mr. Deshmukh, learned counsel for the petitioner strenuously

contends that the respondents lack authority to change the

reservation once the draws were made. The communication dated

16.12.2020, pursuant to which the draws were cancelled is issued by

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the Desk Officer in the name of Hon'ble Governor. All the proceedings

of the State are required to be at the instance and in the name of the

Hon'ble Governor. The learned counsel for the petitioner placed

reliance on the judgment of the Apex Court in case of Nareshbhai

Bhagubhai and others Vs. Union of India and others reported in

(2019) 15 SCC 1. The learned counsel further contends that if the

statute provides for the act to be done by the authority in a particular

manner, then the authority only has a power to perform the act. Once

the draws were made, the Tahsildar lacks the authority to change the

reservations made pursuant to the said draw. The learned counsel

placed reliance on the judgment of the Division Bench of this Court in

case of Kishori Shivram Parab and another Vs. Tehsildar Vengurla and

others reported in 2006 (4) Mh.L.J. 539.

3. Mr. Deshmukh, learned counsel for the petitioner further

submits that the action of the respondents lack bonafide and is

arbitrary and the said action cannot be sustained. The hasty action

suffers from arbitrariness. In the present case, the act of the

respondents in changing the reservations smacks of arbitrariness. The

learned counsel to substantiate his contention placed reliance on the

judgment of the Apex Court in case of Zenit Private Limited Vs. State

of Maharashtra reported in (2009) 10 SCC 388.

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4. Relying upon the judgment of the Apex Court in case of Uddar

Gagan Properties Limited Vs. Sant Singh and others reported in

(2016) 11 SC 378, it is submitted that fraud on power voids the

action of the authority. The mala fides can be inferred from

undisputed facts and the use of power for the purpose is colourable

exercise of power. According to the learned counsel, it was an error

on the part of the respondents in changing the reservation. The State

has no authority of committing flip flop in the reservation and the

illegality committed on 16.12.2020 and thereafter by issuing different

communications culminated in drawing a fresh draws for the post of

Sarpanch on 19.11.2020 and 05.02.2021.

5. The learned A.G.P. submits that the change of the draws were

initiated. The Rules of the Bombay Village Panchayat (Sarpanch and

Up-Sarpanch Election) Rules 1964 have been adhered to while

drawing the draws by the authorities and no illegality has been

committed by them.

6. There cannot be any dispute with the proposition that an

arbitrary action cannot be sustained. Arbitrariness does not have place

in a society governed by the rule of law. Arbitrariness is antithesis to

the rule of law, justice, equity, fair play and good conscience. An act

arbitrary in nature cannot be sustained even for a moment.

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7. In the present case, the draws for the post of Sarpanch were

drawn initially on 08.11.2020 that too not for all the Grampanchayats

in the State, but for the limited Grampanchayats. The draws for

almost 60% of the Grampanchayats were not drawn prior to the

election of the members of the Grampanchayat. It appears that the

decision cancelling all the draws made prior to the elections of the

members of Grampanchayat and to make the draws subsequent to the

elections of the members of the Grampanchayats was taken on

16.12.2020. If the petitioner was really aggrieved by the same, the

petitioner ought to have assailed the action of the respondents of

cancelling the draws at the relevant point of time. The petitioner did

not assail the same at the appropriate time. It is only after the fresh

draws are made and finding that the seat is not available, the

petitioner approached this Court by assailing the cancellation of

draws made on 16.12.2020.

8. The draws have not been changed by the Tahsildar or the

Collector at their end. It appears that the State has taken decision to

cancel the draws already made in respect of some of the village

Panchayats. However, subsequently the draws were made in respect

of some of the Grampanchayats after the elections of the members

were held. Once the State took the decision to cancel the draws, it

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cannot be said that the authorities such as Tahsildar or the Collector

have powers to change the draws. The judgment relied upon by the

petitioner in case of Kishori Shivram Parab (supra) would not apply.

9. The petitioner could not place on record the relevant statistic /

data of the reservation for the post of Sarpanch of Grampanchayat

Pethwadaj for S.C. (women) is in any way not in consonance with the

Rules of 1964. We do not have data before us to show the

reservations made for the post of the Sarpanch of other

Grampanchayats and whether descending order of S.C. category is

adhered to. In absence of the data of the reservation made in the

previous years, it would not be possible to arrive at a definite

conclusion that the reservation made for S.C. (women) is per se

erroneous.

10. Moreover, it does not appear that the petitioner has assailed the

communication dated 16.12.2020 directing the cancellation of the

draws made earlier.

11. In view of the aforesaid, the writ petition stands disposed of. No

costs.

 ( SHRIKANT D. KULKARNI )                              ( S.V. GANGAPURWALA )
         JUDGE                                                  JUDGE
 S.P. Rane


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