Milind Maryappa Mule And Ors vs Talathi, Village Hotgi Station ...
2021 Latest Caselaw 680 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION
                         WRIT PETITION (ST) NO. 95971 OF 2020
Milind Maryappa Mule & Ors.                                  ...       Petitioners
Versus
Talathi, Village Hotgi Station, Solapur & Ors.               ...       Respondents


Mr.Ashok b. Tajane for the Petitioners.
Ms.M.P.Thakur, AGP for the State.
Mr.S.B.Shetye a/w. Mr. Irfan Shaikh, Ms.Sarika Shetye for State Election
Commission.
                                       CORAM : S.J. KATHAWALLA, &
                                                      VINAY JOSHI, JJ.

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

1. By the above Writ Petition, the Petitioners seek to challenge the

formation of wards of Grampanchayat, Village Hotgi Station, Taluka South Solapur,

District - Soalpur, whose elections are scheduled to be held on 15 th January, 2021. In

other words, the Petition challenges the delimitation of panchayat area /

constituencies determined by the authorities - Respondent Nos.2 to 7.

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

"(a) Rule be issued and record and proceedings of the case be called for and after examination, the legality validity and propriety of the order dated 22 nd October, 2020 passed by the learned District Collector, Solapur bearing No. Grampanchayat Hotgi Station / South Solapur objection / SR - 31 / 2020 be

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quashed and set aside.

(b) The objection of the Petitioners dated 13th February, 2020 filed before the Sub Divisional Officer No. 2 Solapur, Solapur Division, Solapur be allowed and granted."

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 7 th February, 2020 to 14th

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

February, 2020 for hearing.

3.3. On 13th February, 2020, the Petitioners submitted their objections to the

SDO.

3.4. On 28th 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 final decision on the formation of wards and

reservation of seats.

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

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3.6               The order of suspension of election was revoked on 20 th October, 2020

after which the final notification 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

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

fixed 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

fixed on 15th January, 2021.

3.7 The Collector passed his order on 22nd October, 2020, rejecting the

objections raised by the Petitioners.

3.8 The Petitioners filed the above Writ Petition on 12 th November, 2020

seeking reliefs, set out in paragraph 2 hereinabove.

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

Commission has submitted that in view of Article - 243O of the Constitution of India,

it is trite law that the Court should not entertain the grievances of the Petitioners

which are the subject matter of the above Writ Petition.

5. 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

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

appointed by the Governor."

6. 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."

7. 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 Petitioners 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

1 2010 (6) Mh. L.J.

2        1995 SCC Suppl. (2) 305





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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

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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 notification of the Delimitation Commission whereby a city which had been a general constituency was notified 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 notification 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 final, the result would be that any voter, if he so wished, could hold up an election indefinitely 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 effect 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

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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 notification 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 notification 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 notification 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

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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."

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

concerned, including the Petitioners to file their objections and suggestions inter alia

with regard to the formation of wards and reservation of seats between 7 th February,

2020 to 14th February, 2020. Admittedly the Petitioners have filed their objections on

13th February, 2020. The SDO has given hearing to the Petitioner and submitted his

report to the Collector. The Collector too has passed his order dated 22 nd October,

2020 dealing with the objections raised by the Petitioners. 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

Petitioners at this late stage, i.e. when the elections are to be held on 15 th January,

2021, cannot be entertained. The Apex Court in the case of Anugrah Narain Singh

and another v. State of U.P. and 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 find some excuse to move the Court and stall the elections." However, it is

3 (1996)6 SCC 303 (Paragraph 12)

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clarified that the Petitioners 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. )