Bombay High Court
Premchand Gulabchand Nahar vs The State Of Maharashtra And ... on 15 February, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
1 WP-8574-2020-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8574 OF 2020
Premchand S/o Gulabchand Nahar
Age 56 years, Occu. Business & Agri.
R/o. Wadwani,
Tq. Wadwani, Dist-Beed.
...Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Town Planning Department,
Mantralaya, Mumbai 32.
2. The State Election Commission,
Through Chief Commissioner,
New Administrative Building,
Madam Kama Road, Hutatma
Rajguru Chowk, Mumbai-32.
3. Divisional Commissioner,
Divisional Commissioner Office,
New Delhi Gate,
Aurangabad Collector Office Campus,
Fazilpura, Aurangabad.
4. The Collector,
Collectorate, Beed.
5. Chief Officer,
Nagarpanchayat, Wadwani,
District : Beed ...Respondents
Mr Sushant V. Dixit, Advocate for Petitioner
Mr P.K. Lakhotiya, Assistant Government Pleader for
Respondent Nos. 1, 3 and 4
Mr A.B. Kadethankar, Advocate for Respondent No. 2
Mr S.G. Jadhavar, Advocate for Respondent No. 5
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CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATE OF RESERVATION : 30.01.2021
DATE OF PRONOUNCEMENT : 15.02.2021
JUDGMENT : ( PER SHRIKANT D. KULKARNI, J. )
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for both the sides, heard finally.
2. The factual matrix of the case is as under :-
(a) General election of Nagarpanchayat, Wadwani, Dist. Beed was
due in the month of November, 2020. The State Election Commission of
Maharashtra paused all the general elections of various self local bodies
including Nagarpanchayat, Wadwani due to Covid-19 pandemic vide its
letter dated 17.03.2020.
(b) The election process was directed to be resumed gradually by
the State Election Commission. Accordingly, the ward delimitation and
reservation process for Nagarpanchayat, Wadwani was initiated under the
instructions dated 06.02.2020 issued by the State Election Commission.
The draft ward formation was to be published on 18.11.2020. The time to
submit objections if any to draft ward formation was during 18.11.2020 to
26.11.2020 (upto 3.00 p.m.). The objections to the ward formation were to
be heard on 04.12.2020. The authority was expected to submit its report
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on the objections to the higher authority upto 10.12.2020. The Divisional
Commissioner, Aurangabad was expected to approve the draft upto
17.12.2020 and the District Collector was expected to publish final
notification on 24.12.2020. However, the above said programme was
modified to little extent. The hearing was to take place on 10.12.2020
instead of 04.12.2020 and the report was to be submitted on 15.12.2020
instead of 10.12.2020. The approval to the draft notification was to be
given upto 24.12.2020 instead of 17.12.2020. The final notification was to
be published on 30.12.2020 instead of 24.12.2020.
(c) The petitioner has raised as many as 30 objections on
25.11.2020 to the ward formation and reservation pursuant to the time
line provided in the schedule. According to the petitioner, respondent
No. 4/Collector, Beed has rejected his objections. His objections were valid
in respect of formation of ward and reservation of the wards. The Collector,
Beed did not assign any reason for rejection of his objections. The
decision of the Collector, Beed is perverse and bad in law. The Collector,
Beed did not consider the guidelines given by the State Election
Commission regarding ward formation and reservation of wards in a letter
and spirit. The decision of the Collector, Beed is violative of principles of
natural justice. The petitioner has prayed for issuance of writ of certiorari or
directions in the nature of certiorari to quash the report of the Collector
dated 10.12.2020.
(d) The Sub Divisional Magistrate, Majalgaon, District, Beed has
filed reply-affidavit on behalf of respondent No. 4 and denied all the
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allegations made by the petitioner. It is the stand of the State that
respondent No. 4 has extended fair opportunity of hearing to the petitioner
and his advocate. It was a public hearing. The hearing was also
videographed and recorded. There were other objectors also, who were
heard. The respondent No. 4 also demonstrated to the objectors including
petitioner during the hearing to satisfy their objections regarding
reservation of lottery. The District collector, Beed has decided all the
objections raised by the petitioner in the light of the guidelines set out by
the State Election Commission. The objections were found untrue and
irrational and hence, came to be rejected. Most of the objections were in
the nature of repetation. The petitioner has even taken objections
regarding statutory provisions which cannot be considered. It is denied
that Collector, Beed merely put his remark of rejection without recording
reasons. The record speaks that the Collector, Beed has considered each
considerable objection with reasoning. The draft notification is finalized
and same is approved by the Divisional Commissioner. None of the
objections raised by the petitioner even remotely suggests fatal to the
entire ward formation process. All the parameters laid down by the State
Election Commission regarding ward formation and reservation were
followed. The elections are already due since long. There is no merit in the
petition. No valid and legal grounds were raised by the petitioner, and as
such, the petition deserves to be dismissed.
3. We have heard Mr Sushant Dixit, learned counsel for the
petitioner, Mr P.K. Lakhotiya, learned Assistant Government Pleader for
the State/Respondent Nos. 1, 3 and 4, Mr A.B. Kadethankar, learned
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counsel for respondent No. 2/State Election Commission and Mr S.G.
Jadhavar, learned counsel for respondent No. 5/Chief Officer, Nagar
Panchayat, Wadwani, Dist. Beed.
4. Perused the impugned decision, objections raised by the
petitioner and other papers annexed with the petition.
5. Before going to the merits of the matter, it is necessary to focus
on the first round of litigation. The petitioner has raised number of
objections regarding ward formation and reservation of Wadwani
Nagarpanchayat, Dist. Beed. On the date of hearing, the petitioner and his
advocate were present. It is alleged that that respondent no. 4 refused to
conduct the hearing on the objections raised by the petitioner and also
insulted petitioner's advocate without any reason. Due to which the
petitioner filed an application before respondent No. 2 to 4 to transfer
hearing of petitioner on objections/application to another District. The
petitioner had approached this Court by filing writ petition No. 8110/2020
seeking transfer of hearing to Collector of another District. This Court was
pleased to dispose of that writ petition with direction to extend full and fair
opportunity of hearing to the petitioner and his advocate. In that
background, the hearing on the objections raised by the petitioner was
conducted before respondent No. 4/Collector, Beed and after full-
fledged hearing, the objections raised by the petitioner came to be turned
down.
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THE SUBMISSIONS OF LEARNED ADVOCATE FOR THE PETITIONER
6. Mr Sushant Dixit, the learned counsel for the petitioner
vehemently submitted that the petitioner has raised valid objections in
respect of the formation and reservation of wards. Respondent No. 4
tuned down those objections without assigning any reasons. He submitted
that respondent No. 5, who is Chief Officer of Nagarpanchayat, Wadwani
has given remarks on objections raised by the petitioner. Respondent No.
5 has no authority to give such kind of remarks, and as such, that exercise
is completely illegal. The objection in respect of the lack of specific
description of the wards and vague nature of boundaries shown in the map
was raised. Unless boundaries of each wards are specifically mentioned
and identified by landmarks and house numbers, it would be difficult to
determine geographical area of the ward. Respondent No. 4 failed to
appreciate that map prepared for ward formation is vague and no
particulars in respect of area of each ward is mentioned in the said map.
The formation of ward is improper. Some wards are amalgamated forming
new wards. There is no justification for such creation of new wards, and
such wards are created only with a view to benefit present members of
Wadwani Nagarpanchayat.
7. The draw of lots has not taken place for providing reservation to
Scheduled Caste and ward No. 17 is reserved for Scheduled Caste in
contravention of provisions of law. Respondent No. 4 has mechanically
rejected the objections raised by the petitioner due to grudge against him
since he has approached the High Court by filing writ petition No.
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8110/2020. The rozanama prepared by respondent No. 4 regarding
hearing also indicates that only one objection was considered and rest of
the objections were simply turned down without conducting any hearing.
Ward formation of Wadwani Nagarpanchayat is erroneous. The impugned
report of Collector, Beed dated 10.12.2020 rejecting objections of the
petitioner is bad in law and liable to be quashed and set aside.
THE SUBMISSIONS OF MR P.K. LAKHOTIYA, LEARNED A.G.P. FOR
RESPONDENT NOS. 1, 3 AND 4/STATE.
8. Mr P.K. Lakhotiya, learned Assistant Government Pleader for
the State supported to the impugned report submitted by the District
Collector, Beed. He submitted that the full and fair opportunity of hearing
was extended to the petitioner and his advocate. The hearing was also
videographed and recorded. The objections raised by the petitioner were
found untrue and irrational and came to be turned down. The learned
Assistant Government Pleader invited our attention to page Nos. 79 to 96
and pointed out that it records merely operative part of the order of
respondent No. 4 whereas page Nos. 75 to 78 demonstrates the
application of mind by respondent No. 4, which speaks about the reasoned
consideration by respondent No. 4 on the objections of the petitioner. The
entire ward formation and reservation is conducted properly as per the
parameters and guidelines set out by the State Election Commission. After
recording details of the hearing, respondent No. 1 submitted a proposal of
ward formation for Wadwani Nagarpanchayat election 2020 to respondent
No. 3 for its sanction. Respondent No. 3 vide its letter dated 19.12.2020
has also accorded sanction to the ward formation of Wadwani
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Nagarpanchayat. No case is made out for interference by the petitioner.
9. Mr A.B. Kadethankar, learned counsel for respondent No. 2 and
Mr S.G. Jadhavar, learned counsel for respondent No. 5 echoed the
argument advanced by learned Assistant Government Pleader.
10. On going through the record, it is seen that the petitioner has
raised near about 30 objections regarding ward formation and reservation
of Wadwani Nagarpanchayat election to be held in the year 2021. The
core question is about the hearing on the objections raised by the
petitioner at the hands of District Collector, Beed.
11. On going through the copy of rozanama (page 75), it is evident
that as per the directions given by this Court in writ petition No. 8110/2020,
opportunity of hearing on the objections was extended to the petitioner and
his advocate on 10.12.2020. So far as the objections raised by the
petitioner at Sr. No. 21, 23, 24 and 29 are concerned, it is seen that those
have been excluded since petitioner's advocate did not raise any
grievance about it. So far as the objections at Sr. No. 1 and 17 are
concerned, according to the petitioner, the persons, who had filed the
affidavit, not present at the time of drawing lottery of reservation. During
course of hearing, advocate for the petitioner considered the position that
out of those three persons, the names of two persons did not find place in
muster, and therefore, that objection did not remain. So far as the another
person Mr Shamrao Rama Rathod is concerned, his name finds place in
the muster roll at Sr. No. 73. His signature also matches. Not only that, in
the video recording, the said person was seen. So also, his photo annexed
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with the affidavit matches. The Clerk of the Nagarpanchayat Mr R.S.
Gursali has also identified that person and also informed about his
acquaintance. As such, the objections raised by the petitioner came to be
turned down.
12. Further, perusing the rozanama, it is found that lot of persons
were present at the time of hearing. It was an institutional hearing and not
a personal hearing. The objections raised by the petitioner regarding not
providing video recording of the entire hearing and filing of affidavit to that
effect of certain persons also turned down by the District Collector, Beed
by making certain observations. On careful scrutiny of the photo copy of
the rozanama, it is found that full and fair opportunity seems to have been
given to the petitioner. There are signatures of learned advocate for the
petitioner, the Chief Officer of Nagarpanchayat, Wadwani, and the
concerned Clerk of Nagarpanchayat.
13. So far as the remarks given by the Chief Officer,
Nagarpanchayat, Wadwani on the objections raised by the petitioner and
concluding remarks of the District Collector, Beed are produced at page
Nos. 79 to 96. The Chief Officer, Nagarpanchayat has offered his remarks
on the objections raised by the petitioner and hearing was conducted on
each and every objections, and thereafter, District Collector, Beed has
turned down those objections. Though in the last column of remarks, no
reasons are assigned, the same find place in the copy of rozanama sheet
at page Nos. 75 to 78. As per the order issued by the State Election
Commission vide No. jkfuvk+&@ui&[email protected]Ø-1&[email protected]&6 dated
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o6.02.2020, the Chief Officer, Nagarpanchayat, Wadwani is assigned the
work to prepare draft ward formation and it is for the Collector to approve
it. In view of the order passed by the State Election Commission, the Chief
Officer, Nagarpanchayat, Wadwani has extended his assistance to the
District Collector, Beed by offering his remarks and he has not played any
role in the actual hearing on objections. Therefore, we do not find any
force in the argument advanced by Mr Dixit, learned counsel for the
petitioner to that effect. During the course of argument, Mr Lakhotiya, the
learned Assistant Government Pleader for the State made it clear that
rozanama is in the own handwriting of District Collector, Beed. It appears
that as per guidelines issued by the State Election Commission, online
google map seems to have been used wherein main roads and other signs
are clearly visible, ward-wise maps are also published after rejection of
objection as appears from the record.
14. The District Collector, Beed seems to have applied his mind
while deciding each and every objections raised by the petitioner regarding
ward formation and reservation for Nagarpanchayat, Wadwani by
extending full and fair opportunity to the petitioner and his advocate.
15. This Court in exercise of its power under Art. 226 of the
Constitution would not sit as an appellate authority over the decision taken
by the authority, but would be concerned with due adherence to the
decision making process. The said procedure seems to have been
followed.
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16. There may be delusions and illusions, while deciding the
objections. However, those are not sufficient to vitiate the whole process
for ensuing election of Nagarpanchayat, Wadwani, Dist. Beed. It would not
render the whole exercise of delimitation of wards and prescription of
reservation and rotation, bad and illegal.
17. We do not find any merit in the writ petition to invoke our writ
jurisdiction. The writ petition needs to be dismissed.
18. Writ Petition stands dismissed. Rule discharged.
[ SHRIKANT D. KULKARNI, J. ] [ S.V. GANGAPURWALA, J. ]
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