Anil Ramchandra Chondhe vs State Of Maharashtra And Ors
2021 Latest Caselaw 679 Bom

N. D.
Jagtap
Digitally signed
by N. D. Jagtap    Nitin                                   1 / 10            14-WPST-97619-2020.doc
Date: 2021.01.14
17:44:07 +0530

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CIVIL APPELLATE JURISDICTION
                                          WRIT PETITION (ST) NO. 97619 OF 2020
                   Anil Ramchandra Chondhe,
                   Age : 43 years, Occupation : Agriculture,
                   R/at : Village - Wadhu Khurd, Taluka - Haveli,
                   District - Pune.                                         ...    Petitioner
                            Versus
                   1.       State of Maharashtra,
                   2.       State Election Commission of Maharashtra,
                            Through its Chief Secretary,
                            First Floor, New Administrative Building,
                            Hutatma Rajguru Chowk, Madam Cama Road,
                            Mumbai - 400 032.
                   3.       The District Collector, Pune.
                   4.       The Tahsildar,
                            Taluka - Haveli, District - Pune.               ...    Respondents


                   Mr.Shekhar Jagtap i/b. J. Shekhar & Company for the Petitioner.
                   Mr.P.G.Sawant, AGP for the State.
                   Mr.S.B.Shetye a/w. Mr.Irfan Sheikh, Ms.Sarika Shetye for the State Election
                   Commission.
                                                       CORAM : S.J. KATHAWALLA, &
                                                                      VINAY JOSHI, JJ.

                                                       DATE         : 13TH JANUARY, 2021.
                   P.C. :

1. By the above Writ Petition, the Petitioner seeks to challenge the Nitin 2 / 10 14-WPST-97619-2020.doc

delimitation/reservation/formation of wards by Respondent No. 2 - State Election

Commission of Maharashtra for the purpose of conducting elections of

Grampanchayat - Wadhu Khurd, Taluka - Haveli, District - Pune, whose elections are

scheduled to be held on 15th January, 2021.

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

"(a) The Hon'ble Court may kindly issue a Writ of Mandamus and any other appropriate Writ and / or direction and / or order and thereby direct that the rules be issued and records and proceedings of delimitation / reservation / ward formation carried out by Respondent No. 2 and direct Respondent No. 2 to restore the position of the wards as prevailing during the year 2015.

(b) This Hon'ble Court may kindly direct Respondent No. 2 for prevailing legally enforceable, reasonable and justifed constituency duly restructured after following the due process of law and making demarcation of constituency proportionate to the prevailing population adequately of village Wadhu Khurd, Taluka Haveli, District Pune.

(c) That the Hon'ble Court may kindly issues the Writ of Certiorari and any other appropriate Writ and / or direction and / or order and thereby quash and set aside the process of delimitation as in the present constituency of Ward No. 1 of Village Wadhu Khurd, Taluka - Haveli, District - Pune as it is being in the violation of Representation of People Act of 1951."

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

Writ Petition, are briefy 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 Nitin 3 / 10 14-WPST-97619-2020.doc

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 7 th February, 2020 to 14th

February, 2020, and forwarded to the Sub Divisional Ofcer ('SDO') on 20th

February, 2020 for hearing.

3.3 On 29th February, 2020, the SDO gave hearing to the persons who had

submitted their objections and suggestions and sent his report/proposal to the

Collector on 11th March, 2020, for his fnal decision on the formation of wards and

reservation of seats.

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

3.5 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 Commission 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.

 Nitin                                4 / 10                14-WPST-97619-2020.doc

3.6            The Petitioner admittedly fled his objections with regard to the

delimitation / reservation / formation of wards in December, 2020, i.e. after the fnal

notifcation of formation of wards was published.

3.7 The Petitioner fled the above Writ Petition on 1 st December, 2020

seeking reliefs, set out in paragraph 2 hereinabove.

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 since the Writ

Petition is fled on 1st December, 2020, i.e. after all the steps as set out in Clause 3

above are taken, it is trite law that the Court should not entertain the same.

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

Petitioner had not chosen to submit his objections during the time prescribed i.e.

between 7th February, 2020 and 14 th February, 2020, but instead fled the same only in

December, 2020 i.e. after the fnal notifcation of formation of wards was published.

The learned Advocate appearing for the Petitioner states that he has no instructions in

this regard.

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 Nitin 5 / 10 14-WPST-97619-2020.doc

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

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 except 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 Samiti 2, 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

1 2010 (6) Mh. L.J.

2       1995 SCC Suppl. (2) 305
 Nitin                                   6 / 10                  14-WPST-97619-2020.doc

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 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 except 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 exercised 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 Apex 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 Nitin 7 / 10 14-WPST-97619-2020.doc

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 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 examination 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 Nitin 8 / 10 14-WPST-97619-2020.doc

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 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 except 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 Apex 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 except 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 Apex 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 Nitin 9 / 10 14-WPST-97619-2020.doc

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 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 Apex 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 his objections and suggestions with regard

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

February, 2020. However, admittedly the Petitioner chose not to fle any objections or

suggestions within the time prescribed. If the Petitioner would have fled his

objections/suggestions between 7th February, 2020 and 14th February, 2020, the SDO

would have enquired into the same, given a hearing to the Petitioner and submitted his

report to the Collector. It is only after the SDO submitted his Report to the Collector

and after a fnal notifcation was issued in November 2020, that the Petitioner woke up

from his slumber and has attempted to impugn the delimitation/reservation/

formation of wards. In view of the decision of this Court in the case of Jadhav

Shankar Dyandeo (supra), which follows the decision of the Apex Court in State of

Uttar Pradesh (supra), the grievance raised by the Petitioner at this late stage, i.e. when

the elections are to be held on 15th January, 2021, cannot be entertained. The Apex

Court in the case of Anugrah Narain Singh and another v. State of U.P. and Nitin 10 / 10 14-WPST-97619-2020.doc

others3held, "Moreover, it is well settled by now that if the election is imminent or well

under way, the Court should not 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

excuse 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 Panchayats 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. )




3   (1996)6 SCC 303 (Paragraph 12)