Shri. Atul Bhaskar More vs The State Of Maharashtra And Ors
2021 Latest Caselaw 499 Bom

Kanchan
P. Dhuri
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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Kanchan P.
 Dhuri
 Date:
 2021.01.12
 10:57:17

                                       CIVIL APPELLATE JURISDICTION
 +0530




                                     WRIT PETITION (ST) NO. 97093 OF 2020
              Shri Atul Bhaskar More
              Age - 28 years, Occu. - Agriculture
              R/o - At-Post - Chale, Tal. - Pandharpur,
              District - Solapur.                                    ...      Petitioner
                       Versus
              1]       The State of Maharashtra,
                       Through, its Urban and Rural
                       Development Department,
                       Mantralaya, Mumbai.
              2]       The Collector, Solapur,
                       Having Ofce at Collector Compound,
                       Solapur, District - Solapur.
              3]       The Sub Divisional Ofcer,
                       Pandharpur Division Pandharpur.
              4]       Tahsildar, Pandharpur,
                       Taluka - Pandharpur, District - Solapur.
              5]       Shri Rajaram Ananta Gaikwad,
                       Age :-        Occu :- Agri.
                       R/o. Chale, Taluka - Pandharpur,
                       District - Solapur.
              6]       Grampanchayat, Chale,
                       Tal.-Pandharpur, District - Solapur.          ...      Respondents
                                                         .........




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Mr. Dinesh W. Bhosale for the Petitioner.
Ms. R.M. Shinde, AGP for the State.
Mr. S.B. Shetye alongwith Mr.Irfan Shaikh and Ms. Sarika Shetye for the State
Election Commission.
                                       .........
                                 CORAM : S.J. KATHAWALLA AND
                                                      VINAY JOSHI, JJ.

DATED : JANUARY 11, 2021

ORAL JUDGMENT [PER : S.J. KATHAWALLA, J.] :

1. By the above Writ Petition, the Petitioner seeks to challenge the formation of

wards and reservation of each wards in Grampanchayat Chale, Taluka - Pandharpur,

District - Solapur and the Order passed by the Collector on 23 rd October, 2020,

dismissing the Appeal fled by the Petitioner.

2. The reliefs sought in the above Writ Petition are as follows :

"(b) This Hon'ble Court by virtue of his appropriate order be pleased to call for record and proceedings of proceeding in respect of deciding the objections on the formation of wards and the reservation of each wards in Village Chale, Tal- Pandharpur, District - Solapur and order passed thereon by the Collector on 23rd October, 2020, after going through its validity, legality and proprietory of the said order the same be quash and set aside.

(c) This Hon'ble Court by virtue of his appropriate order be pleased to direct to the Respondent No.2 learned Collector Solapur to reconsider the proceeding in respect of formation of the wards and the reservation fied to the respective wards of village Chale, Tal - Pandharpur, Dist- Solapur pursuant to the notice issued under rule 5(2) of the Bombay Village Panchayat Rules, 1966.

(d) This Hon'ble Court by virtue of his appropriate order be pleased to stay the operation, implementation and eiecution of the impugned order dated

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23/10/2020 and the proclamation issued under Rule 5(1) in type A (Schedule 1) passed and issued by the Collector Solapur."

3. The facts which are relevant for deciding the reliefs sought in the above Writ

Petition, are in brief set out hereunder :

3.1 On 29th November, 2019, Respondent No.2 - State Election Commission

published guidelines and procedure for formation of wards and reservation of seats for

village panchayats whose tenure was coming to an end between July 2020 and

December 2020.

3.2 The objections and suggestions with regard to formation of wards and

reservation of seats were invited by the Tahsildar between 7th February, 2020 to 14th

February, 2020, and the objections and suggestions received were forwarded to the

Sub-Divisional Ofcer ('SDO') on 20th February, 2020, for hearing.

3.3 The Petitioner fled his objection with the SDO on 7th February, 2020.

3.4 The SDO gave a hearing to the Petitioner on 29th February, 2020 and rejected

his objections on the same day, i.e. on 29 th February, 2020, on the ground that the

objections raised by him are vague.

3.5 The SDO after hearing the persons who had submitted their objections and

suggestions, sent his report/proposal to the Collector on 11th March, 2020, for his fnal

decision on the formation of wards and reservation of seats.

3.6 The Petitioner fled an Appeal before the Collector though there is no provision

for fling such Appeal. However, the Collector dismissed his Appeal confrming the

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fndings of the SDO, that his objections are vague.

3.7 In the meantime, elections were suspended due to the pandemic.

3.8 The order of suspension of election was revoked on 20 th October, 2020 after

which the fnal notifcation was published on 2 nd November, 2020. Thereafter, the

State Election Commissioner declared the election programme on 11 th December,

2020 and the District Collector was to publish the election programme on 15 th

December, 2020. As per Schedule 'A' to the said programme, nominations were to be

fled between 23rd December to 30th December, 2020; Scrutiny of nominations was

fxed on 31st December, 2020; Withdrawal of nominations was allowed upto 4 th

January, 2021 by 3.00 p.m.; Allotment of symbols and declaration of names of

candidates were to be provided on 4th January, 2021 after 3.00 p.m.; and the voting

was fxed on 15th January, 2021.

3.9 The above Petition was fled by the Petitioner before this Court on 12 th

November, 2020.

4. The Learned Advocate appearing for Respondent No.2 - State Election

Commission has submitted that all steps to conduct the election have been taken by

the Election Commission. The ballot papers are printed and fxed on the Electronic

Voting Machines ('EVMs') which are already set up and are kept at a secured venue

and will be opened on the day of the election in the presence of all the candidates.

5. The Learned Advocate for Respondent No.2 states that the Petitioner was

allowed to fle his objections after which he was given a hearing by SDO and his

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objections were rejected on the ground that the same were vague, the Petitioner

thereafter fled an Appeal before the Collector which too has been rejected by the

Collector confrming the ground of dismissal by the SDO. The Petitioner has

thereafter fled the above Writ Petition without joining the State Election Commission

as party Respondent to the Writ Petition and has also not annexed to the Writ Petition

the objections fled by him before the SDO. It is therefore submitted on behalf of

Respondent No.2 that the above Writ Petition should not be entertained and should be

dismissed.

6. We have enquired from the Advocate for the Petitioner as to why the State

Election Commission is not joined as party Respondent to the above Writ Petition and

further as to why the objections fled by the Petitioner are not annexed to the Writ

Petition though the Petitioner contended in the Writ Petition that the objections raised

by him have been incorrectly rejected by the SDO and the Collector has erred in

confrming the objections of the SDO. The Petitioner has no explanation to ofer to

these queries raised by the Court. However, we allow the Advocate for the Petitioner

to forthwith amend the Petition and join the State Election Commission as party

Respondent No.2 to the Petition. Reverifcation is dispensed with.

7. Clause 1 of Article 243K of the Constitution of India pertains to Election to the

Panchayats and provides that, "the superintendence, direction and control of the

preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be

vested in a State Election Commissioner consisting of a State Election Commissioner to be

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appointed by the Governor."

8. Article 243-O bars interference by courts in electoral matters. The same is

reproduced hereunder :

"Article 243-O - Bar to interference by courts in electoral matters. - Notwithstanding anything in this Constitution -

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question eicept by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

9. In the case of Jadhav Shankar Dyandeo and another v. Collector, Satara and

another1, the Division Bench of this Court, following the decision of the Supreme

Court in State of Uttar Pradesh vs. Pradhan Sangh Kshettra Samiti2, has inter-alia held

that the delimitation of panchayat area or the formation of the constituencies in the

panchayat area, as well as allotment of seats to such constituencies cannot be

entertained by the Court since the objections were invited, the Petitioner had raised

objections, hearing was given to them and it is only thereafter that the objections were

rejected by the Collector Satara by passing the impugned Order. Paragraph 12 of the

said Judgment is relevant and is reproduced hereunder :-

"12. ... It is therefore evident that the territorial area of a Panchayat is distinct and separate from the revenue limits of the village which also include

1 2010(6) Mh.L.J.

2    1995 SCC Suppl. (2) 305


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group of villages. Similarly, Article 243-C deals with compositions of panchayats and Article 243-K deals with Elections to the Panchayats. Article 243-K(1) contemplates the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. [Sub clauses 2, 3, 4 of Article 243-K are not relevant for deciding the issue in question]. Article 243-O prohibits interference by the court in electoral matters and contemplates that notwithstanding anything in this Constitution the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article243-K,shall not be called in question in any court. Sub clause (b) stipulates that no election to any Panchayats shall be called in question eicept by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. It is therefore evident that as per the provisions of Article 243-O(a) once the power eiercised by the State Election Commission in relation to delimitation of constituencies or allotment of seats to such constituencies of the Panchayat, such action cannot be called in question in any court. The issue is no more res integra and is covered by the decision of the Apei Court in case of State of Uttar Pradesh (cited supra). Relevant observations are in paragraph 45 of the said judgment, which reads thus :

"(45) WHAT is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be

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made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this court in Meghraj Kothari v. Delimitation Commission. In that case, a notifcation of the Delimitation Commission whereby a city which had been a general constituency was notifed as reserved for the Scheduled Castes, This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This court held that the impugned notifcation was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an eiamination of S. 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under S. 8 and 9 were not to be treated as fnal, the result would be that any voter, if he so wished, could hold up an election indefnitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10 (1 of that Act is not part of an Act of Parliament, its efect is the same. Section 10 (4 of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and S.2(kk), 11-F and 12-BB of the Act in place of

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S. 8 and 9 of the Delimitation Act. 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge eicept on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notifcation for holding the elections was issued. The High court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notifcation for the election was issued on 31/8/1994."

The plain reading of the above referred observations made by the Apei Court would show that if provisions of Article 243-C, 243-K and 243-O are read together the delimitation of Panchayat area or the formation of the constituencies in the said areas and allotments of seats to the constituencies could be challenged nor the court can entertain such challenge eicept on the ground that before delimitation, no objections were invited and no hearing was given, even though this challenge also could not be entertained after the notifcation for holding the election is issued. The law declared by the Apei Court is loud and clear and prohibits courts to entertain challenge in view of Article 243-C, 243-K read with 243-O in respect of the above aspects, and therefore the challenge raised by the petitioners pertaining to delimitation of Panchayat area or that of formation of constituency in the said area as well as allotment of seat to such constituencies cannot be entertained by this court since the objections were invited, petitioners have raised objections, hearing was given to them and it is only thereafter the objections were rejected by the Collector Satara by passing impugned order. The contentions canvassed by the petitioners

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based on Rule 2 (5) of BVP Rules, 1966 as well as Section 4 of MLR Code as well as Section 2(4) of the BVP Act in view of Article 243-C, Article 243-K and 243-O coupled with the law declared by the Apei Court in State of Uttar Pradesh (cited supra) is devoid of substance."

10. In the instant case, the Tahsildar had given an opportunity to all concerned,

including the Petitioner to fle their objections and suggestions with regard to the

formation of wards and reservation of seats between 7 th February, 2020 to 14th

February, 2020. Pursuant thereto, the Petitioner fled his objections within the time

prescribed. The SDO gave a hearing to the Petitioner and rejected his objections on

29th February, 2020. The Petitioner thereupon fled an Appeal before the Collector.

Though there is no provision in law to fle an Appeal before the Collector from the

Order of rejection by the SDO, the Collector entertained the Appeal and dismissed

the same by confrming the Order of the SDO that the Appeal fled is vague. Despite

the above, the Petitioner has fled the present Writ Petition that too without joining

the State Election Commission as party Respondent to the Petition and without

annexing the objections raised by the Petitioner before the SDO. The elections are

scheduled to be held on 15th January, 2021. In view of the decision of this Court in the

case of Jadhav Shankar Dyandeo (supra), which follows the decision of State of Uttar

Pradesh (Supra), the above Writ Petition cannot be entertained. The Apex Court in the

case of Anugrah Narain Singh and another v. State of U.P. and others 3 held, "Moreover, it

is well settled by now that if the election is imminent or well under way, the Court should not

3 (1996)6 SCC 303 (Paragraph 12)

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intervene to stop the election process. If this is allowed to be done, no election will ever take

place because someone or the other will always fnd some eicuse to move the Court and stall

the elections." However, it is clarifed that the Petitioner can always pursue the

remedy provided under Section 15 of the Maharashtra Village Panchayat Act, 1959. If

the said remedy is pursued, it will be open for the parties to raise all their contentions.

The above Writ Petition is accordingly dismissed.

( VINAY JOSHI, J. )                                          ( S.J. KATHAWALLA, J. )




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