Shri. Dariba Jayram Kamble vs Sate Election Commission, ...
2021 Latest Caselaw 730 Bom

Swaroop   Digitally signed
          by Swaroop S.
S.        Phadke
          Date: 2021.02.04
Phadke    11:02:54 +0530
                                                                    6 wpst 97253 of 2020.doc

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION
                       WRIT PETITION (ST) NO.97253 OF 2020

  Dariba Jayram Kamble and Ors.                              ...   Petitioners
         versus
  State Election Commission and Ors.                         ...   Respondents

  Mr. Manoj A. Patil, for Petitioners.
  Ms. K.N.Solunke, AGP, for State.
  Mr. S.B.Shetye with Mr. Ifran Sheikh, Ms. Sarika Shetye, for State Election
  Commission.
  Mr. A.B.Shette, Mandal Ofcer, Mr. G.B.Kanwadkar, Talathi, Dherangutti, Ta. Shirol
  and Mr. C..Galve, Block Development Ofcer, present in Court.

                               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 Notifcation

dated 2nd November, 2020 issued by the District Collector of Kolhapur under Rule

5(1) of the Maharashtra Village Panchayats (Number of Members, Divisions into

Wards and Reservation of Seats) Rules, 1966 concerning Grampanchayat election of

Taluka Shirol, District Kolhapur, scheduled to be held on 15 th January, 2021. The

reliefs sought in the above Writ Petition are as under :

(a) Rule be issued. Record and proceedings be called for;

(b) This Hon'ble Court be pleased to issue appropriate writ, order and or direction and to quash and set aside the impugned Notifcation dated 2/11/2020 (Exhibit J to the Petition) issued by the Ld. District Collector of Kolhapur under Rule (1) of the

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Maharashtra Village Panchayats (Number of Members, Divisions into Wards and Reservation of Seats) Rules, 1966;

(c) This Hon'ble Court be pleased to issue appropriate writ, order and /or direction and to direct Respondent Nos.2 to 5 to initiate fresh proceedings for reservation of seats by strictly following the procedure and complying with the statutory Rule 4, Rule 4(2), Rule 4-B and Rule 4-C of the Maharashtra Village Panchayats (Number of Members, Divisions into wards and Reservation of Seats ) Rules, 1966 for the general election of Respondent No.6 Grampanchayat Dharangutti, Tal. Shirol, Dist. Kolhapur and also further be pleased to direct the said Respondents to take into consideration the State Election Commission directive guidelines with regard to factum of reservation of seats of Scheduled Caste and Scheduled Tribe into the ensuing election;"

2. Admittedly, the subject grampanchayat has fve wards and from each ward,

three members i.e. total of 15 members are to be elected. Out of the said 15 members,

three seats are reserved for scheduled caste candidates.

3. 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. 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. The Petitioners fled their objection on 13 th February, 2020,

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wherein they have after referring to the election declared by the State Election

Commission and the guidelines pertaining to the formation of seats and reservations,

pointed out that the reservation of seats is provided in Ward Nos.1, 4 and 5 for

schedule caste candidates. However, in Ward No.2 though the population is of

approximately 500 individuals, there is no reservation provided for a schedule caste

candidate in Ward No.2, which ought to have been done. Except for this objection,

the Petitioners have not raised any other objections before the Sub-Divisional Ofcer

(SDO). The SDO considered the objection, gave a hearing to the Petitioners on 25 th

February, 2020 and by his report dated 28 th February, 2020 suggested that one seat

per ward be reserved for a scheduled caste candidate in Ward Nos.1, 2 and 5. In other

words, the objection raised by the Petitioners was accepted in its entirety.

4. Thereafter, on 25th February, 2020 i.e. after the period of submitting

objections was over long back over i.e. on 14 th February, 2020, the Petitioners

submitted another letter to the SDO in the garb of amplifying the objection raised by

them in their letter dated 13th February, 2020, but now changing the entire tenor of

objection by suggesting that there should be no reservation in Ward No.1 and the same

should only be confned to Ward Nos.2, 4 and 5. The SDO has correctly not

considered this objection and has not forwarded the same to the District Collector, the

same being fled much later than the prescribed period i.e. between 7 th February, 2020

to 14th February, 2020. The thrust of the argument before us on behalf of the

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Petitioners is that Ward No.1 ought not to have been included in the fnal Notifcation

issued by the District Collector. The submission deserves to be rejected on the sole

ground that such objection was not taken within the prescribed time and the

cognizance of the same now cannot be taken.

5. The learned Advocate for the State Election Commission has drawn our

attention to the provisions of Rule 4 of the Maharashtra Village Panchayats (Number

of Members, Divisions into wards and Reservation of Seats ) Rules, 1966, which read

thus :

"4. Manner of Allotment and rotation of seats reserved for Scheduled Castes and Scheduled Tribes : - Subject to the provisions of clauses (a) and (b) of sub-section (2) of Section 10, the seats to be reserved for the Scheduled Castes and the Scheduled Tribes shall be allotted and rotated in accordance with the following principles, namely : -

(1) Where the number of seats to be reserved for the Scheduled Castes or as the case may be, the Scheduled Tribes and the number of wards in a village is the same, then there shall be allotted to such Castes, or as the case may be, the Tribes, one seat to every ward.

(2) Where the number of seats to be reserved for the Scheduled Castes, or as the case may be, the Scheduled Tribes, is less than the number of wards in a village, then the seats shall be allotted in descending order beginning with a ward where the percentage of population of the Scheduled Castes or as the case

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may be, the Scheduled Tribes with regard to the total population of such ward in the highest :

Provided that the seats to be reserved shall be rotated, in the subsequent elections, to the wards in the village in which no such seat has been reserved for such Castes or Tribes until such reservation is given to the wards in the village, by rotation in which seats are admissible for such Castes or Tribes, having regard to the proportion of their population in those wards.

(3) Where the number of seats to be reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes is more than the number of wards in a village, then with a view to securing representation to the members of such Castes or Tribes in as many wards as possible in the village, one seat shall be allotted to each ward for such Castes or Tribes and the remaining seats shall be allotted and rotated as provided in the proviso to sub-Rule (2) :

Provided that the seats to be reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes under sub- rules (1), (2) and (3) shall be allotted and rotated only among the wards in which seats are admissible for such Castes or Tribes having regard to the proportion of their population in those wards.

(4) The allotment of seats as under Sub-rules (1), (2) and (3) shall be made in such a way that at least one seat, as far as practicable, shall be kept unreserved in each ward. Explanation - While calculating the number of seats, the fraction of one half or more of a seat shall be counted as one and the fraction of less than one half shall be ignored.

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4-A Manner of allotment and rotation of seats reserved for Backward Class of Citizen - ............

4-AA.....

4-B - Manner of allotment and rotation of seats reserved for women - .......

4-C - Preparation of roaster for Reservation of Seats - Roaster shall be prepared for a period of every fve years, commencing from the twenty third April, 1994 for each village at the Tahsil level for reservation of the seats for the Scheduled Castes, the Scheduled Tribes, the category of Backward Class of citizens and women."

6. The learned Advocate for the State Election Commission has also drawn our

attention to the report dated 28th February, 2020 of the SDO, wherein the population

of the scheduled caste as existed in the year 2015 (i.e. the last election held for the

Grampanchayat) and the present population of the scheduled castes is shown as

under :

izHkkx Ø- gjdrhiwohZph izHkkxkrhy LFkGikg.kh varh vk<Gwu v-tk- ph yksdla[;k vkysyh v-tk- ph yksdla[;k

,dw.k 1469 1469

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7. The Learned Advocate for the State Election Commission has

submitted that based on the strength of the population of the scheduled castes in the

aforestated fve wards during the elections of 2015, the seats were reserved for

scheduled caste candidates in Ward Nos.5, 1 and 4. He has further submitted that

following the rotation policy and again considering the strength of the scheduled

castes in the wards, Ward No.5 rotated in Ward No.1, Ward No.1 rotated in Ward

No.2 and Ward No.4 rotated in Ward No.5 based on the strength of the population.

He therefore, states that even otherwise, there is no irregularities or illegality involved

on the part of the ofcials of the State Election Commission and the said exercise is in

consonance with Rule 4(2) of the Maharashtra Village Panchayats (Number of

Members, Divisions into wards and Reservation of Seats ) Rules, 1966.

8. The learned Advocate for the Petitioners difer with the submissions

advanced on behalf of the State Election Commission. However, we fnd force in the

submissions advanced on behalf of State Election Commission. Even otherwise, since

the Petitioners have an alternate remedy provided by Section 15 of the Maharashtra

Village Panchayats Act, 1959, we do not intend to interfere with the decision taken by

the State Election Commission qua the reservation of the seats in the aforestated

wards with regard to the scheduled caste candidates.

9. Again, we would also like to point out that Clause 1 of Article 243K of the

Constitution of India pertains to Election to the Panchayats and provides that, "the

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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 appointed by the Governor."

10. 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."

11. The Supreme Court in the case of Anugrah Narain Singh V/s. State of U.P. 1

where the challenge pertaining to the reservation of seats in favour of Scheduled

Castes and Scheduled Tribes are concerned, the Supreme Court has held/observed

that "the importance of holding elections at regular intervals for Panchayats,

municipal bodies or legislatures and has proceeded to hold that no High Court under

Article 226 of the Constitution of India should pass any orders, interim or otherwise,

which has the tendency or efect of postponing an election, which is reasonably

imminent and in relation to which its writ jurisdiction is invoked". The relevant

1 (1996) 6 SCC 303

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paragraphs of the said judgment are reproduced hereunder :

"14. There are several reasons why these arguments of the writ petitioners should not have been upheld. The High Court overlooked the fact that no municipal election had been held in the State for nearly ten years and the dates of the elections were fied under the direction given by the High Court in another case. Importance of holding elections at regular intervals for panchayats, municipal bodies or legislatures cannot be overemphasised. If holding of elections is allowed to be stalled on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have right to elect their representatives to the local bodies. As a result of the order of the High Court, elections that were going to be held to the local bodies after a long lapse of nearly ten years were postponed indefnitely. It was pointed out by this Court in the case of Lakshmi Charan Sen V. A.K.M. Hassan Uzzaman2, that : (SCC p. 703, para 21) the fact that certain claims and objections are not fnally disposed of, even assuming that they are fled in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations".

15. The Court also quoted from its order dated 30-3-1982 that :

(SCC pp. 219-20, para 1) "no High Court in the eiercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or efect of postponing an election, which is reasonably

2 (1985) 4 SCC 689

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imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the eiercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefnitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. ...The High Courts must observe a self imposed limitations on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefnite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution."

16. In this case, the High Court has ignored the fact that the electoral process was well under way and was scheduled to be completed in less than ten days' time. The High Court also failed to observe the self-imposed limitation as enjoined by this Court in the case of Laxmi Charan Sen."

17. In Lakshmi Charan Sen case, this Court was dealing with Part XV of the Constitution which deals with preparation of electoral rolls for, and the conduct of, all elections to Parliament, and to the Legislatures of diferent States and all elections to the ofces of the President and the Vice-President. We are in this case, concerned with the elections to municipal bodies. But the principles laid down in Lakshmi Charan Sen case will apply in full force to municipal elections because various articles dealing with holding of municipal elections in Part IX-A of the Constitution are similarly worded. In fact, highest

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importance has been attached to holding of panchayat as well as municipal elections by the Constitution. Parts IX and IX-A of the Constitution were introduced by the Constitution (73 rd Amendment) Act, 1992 and (74th Amendment) Act, 1992. By these two Parts, it was intended to take democracy to the grass-root level. Part IX deals with constitution of panchayats, composition of panchayats and holding of regular elections to the panchayats. Article 243-O contains a bar to interference by Court in electoral matters. This bar is similar to the bar contained in Article 329 of the Constitution in Part XV, the implication of which was eiplained by this Court in the case of Lakshmi Charan Sen.

12. In view of the aforesaid legal proposition, the Writ Petition is dismissed.

However, it is clarifed 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, and the issues

raised will be decided without being infuenced by our aforestated observations.

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




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