Gunwanta S/O Pundlik Kale vs State Of Maharashtra, Thr. ...
2023 Latest Caselaw 10453 Bom

2023:BHC-NAG:14808-DB




            WP-4671-2023(J).odt                                                                              1/13


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH, NAGPUR.

                                        WRIT PETITION NO. 4671 OF 2023

                    Gunwanta s/o Pundlik Kale,
                    Aged about 45 years, Occupation - Sarpanch,
                    R/o C/o. Pundlik Kale, Jalalkheda,
                    Nagpur-441 112.                            ..... PETITIONER

                            ...V E R S U S...

            1.      State of Maharashtra,
                    Through its Secretary, Department of Rural Development
                    and Panchayat Raj,
                    Mantralaya, Mumbai-32.

            2.      The Collector,
                    District Nagpur.

            3.       The State Election Commission
                     Maharashtra, through its
                     State Election Commissioner,
                     Office at First Floor, New Administrative Building,
                     Hutatma Rajguru Chowk,
                     Madam Cama Road, Mumbai-400 032                             ....... RESPONDENTS
            ---------------------------------------------------------------------------------------------------------
            Shri Akshay A. Naik, Advocate with Shri R.S.Kalangiwale, Advocate for
            petitioner.
            Shri N. P. Mehta, Assistant Government Pleader for respondent nos. 1 and 2.
            Shri J. B. Kasat, Advocate for respondent no.3.
            ---------------------------------------------------------------------------------------------------------

            CORAM :- A.S.CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.
            THE ARGUMENTS WERE HEARD ON : 6th OCTOBER, 2023
            JUDGMENT IS PRONOUNCED ON   : 10th OCTOBER, 2023

            JUDGMENT (Per A.S.CHANDURKAR, J.)

Rule. Rule made returnable forthwith and heard the learned

counsel for the parties.

WP-4671-2023(J).odt 2/13

2. The issue raised in this writ petition filed under Article 226 of the

Constitution of India is with regard to reservation in the Offices of

Sarpanchas being provided in a manner that exceeds the limit permitted

under the Statute and the law in that regard.

3. In the elections for the office of Sarpanch of Gram Panchayat

Jalalkheda that were held in September-2018 the petitioner was elected to

the post of Sarpanch. His term is to expire on the completion of tenure of

five years. On 05.03.2020 the Rural Development Department published

Notification in exercise of powers under Rule 2A(2) of the Maharashtra

Village Panchayats (Sarpanch and Upa-Sarpanch) Elections Rules, 1964 (for

short, the Rules of 1964). The reservation prescribed for the offices of

Sarpanchas in the entire State of Maharashtra was with regard to 24972

Gram Panchayats. Insofar as Nagpur District is concerned, the total number

of Gram Panchayats was shown to be 768. Of the said 768 Gram Panchayats,

437 posts of Sarpanch were shown to be reserved while 331 posts were

shown for the 'Open' category. Acting on the aforesaid Notification, the

Collector on 25.11.2020 issued a Notification under Rule 2A(3) and (4) of

the Rules of 1964 indicating reservation in the offices of Sarpanchas in

various Tahsils in the District of Nagpur based on census of 2011 for the

period from 2020 to 2025. As stated above, out of 768 posts of 'Sarpanch'

437 posts were shown to be reserved for various categories of Backward WP-4671-2023(J).odt 3/13

Classes while 331 posts were for the Open category. After the present writ

petition was filed on 19.07.2023 and reply of the State authorities including

the State Election Commission was awaited, the State Election Commission

on 03.10.2023 issued an order notifying the elections at various Gram

Panchayats in the State of Maharashtra. As per the said order, the notice of

the Gram Panchayat elections was published by the Tahsildar on 06.10.2023.

This includes 365 Gram Panchayats in the District of Nagpur including Gram

Panchayat Jalalkheda. By amending the writ petition, the petitioner has also

challenged the order dated 03.10.2023 passed by the State Election

Commission.

4. Shri A.A.Naik, learned counsel for the petitioner referred to various

provisions of the Maharashtra Village Panchayats Act, 1959 (for short, the

Act of 1959) and especially Sections 10, 11 and 30 thereof. As per the

provisions of Section 30(4)(a), it was submitted that the number of offices of

Sarpanchas to be reserved for the Scheduled Castes and Scheduled Tribes

was required to be in the same proportion as the population of the

Scheduled Castes and Scheduled Tribes in the State. Under Section 30(4)(b)

insofar as the reservation for the category Backward Class of citizens in the

offices of Sarpanchas were concerned, the same ought to be 27% of the total

number of such offices in the panchayats and the total reservation was

limited to 50% of the total seats in the concerned District. It was thus WP-4671-2023(J).odt 4/13

submitted that since the reservation of the offices of Sarpanchas exceeded

50% in view of the Notification dated 05.03.2020 insofar as the entire State

was concerned and the Notification dated 25.11.2020 insofar as the Nagpur

District was concerned, it was clear that this reservation in Nagpur District

was contrary to Section 30(4)(b) of the Act of 1959. Inviting attention to

the amendment to Section 30(4)(b) of the Act of 1959 that came into effect

on 23.09.2021 and the Statement of Object and Reasons for introducing the

Bill in that regard, it was submitted that by virtue of the decision of the

Hon'ble Supreme Court in Vikas Kishanrao Gawali vs. State of Maharashtra

and others [(2021) 7 SCC 73], the Legislature was conscious of the law laid

down in the said decision and thus amended the said provision. In that

context, the Notifications dated 05.03.2020 and 25.11.2020 were contrary to

the provisions of Section 30(4)(b) of the Act of 1959 as amended.

Referring to a similar challenge raised to the Notifications dated

05.03.2020 and 25.11.2020 in Writ Petition No.6635 of 2022 ( Sunil s/o

Gangaram Dudhpachare vs. State of Maharashtra and others) and the order

dated 05.12.2022 passed thereon, it was submitted that the challenge to the

said Notifications on merits was not considered on the ground that the

challenge was raised by the petitioner therein belatedly after the election

process had commenced. Since the cause of action to the petitioner herein

had arisen now and his elective term was to come to an end, the petitioner

has raised a challenge to the aforesaid Notifications. As the petitioner had WP-4671-2023(J).odt 5/13

approached the Court prior to the election process being set in motion, the

challenge ought to be entertained on merits. Though time was sought by the

respondents to file reply to the writ petition, the same was not immediately

filed and in the meanwhile, the State Election Commission issued its order

dated 03.10.2023 seeking to set in motion the election process. The

petitioner having approached the Court well in time and prior to issuance of

the order dated 03.10.2023, there was no delay on the part of the petitioner

in raising such challenge. Relying upon the decision of the Hon'ble Supreme

Court in Union Territory of Ladakh and Others vs. Jammu and Kashmir

National Conference and Another [2023 SCC Online SC 1140] it was

submitted that this Court under Article 226 of the Constitution had ample

powers to ensure that the elections were not held in a manner contrary to

law laid down by the Hon'ble Supreme Court as well as the statutory

provisions. Permitting the elections for the offices of Sarpanchas to be held

on the basis of the Notifications dated 05.03.2020 and 25.11.2020 would in-

fact result in perpetuating illegality which ought not to be permitted. There

being larger public interest involved, this Court ought to interfere and direct

the authorities to hold the elections in accordance with Section 30(4)(b) of

the Act of 1959 so that the statutory mandate was not violated. Reference in

this regard was made to the decisions in M/s. Dehri Rohtas Light Railway

Company Limited vs. District Board, Bhojpur and others [AIR 1993 SC 802]

and Dr. Kashinath G. Jalmi and another vs. The Speaker and others WP-4671-2023(J).odt 6/13

[ AIR 1993 SC 1873]. It was thus submitted that even now the illegality

could be rectified by directing the Authorities to issue a fresh notification to

ensure that the reservation of the Offices of Sarpanchas would not exceed

50%.

5. Ms. N. P. Mehta, learned Assistant Government Pleader for the

respondent nos. 1 and 2 opposed the aforesaid submissions. It was

submitted that though the Rural Development Department had issued its

Notification on 05.03.2020 and the Collector had issued the Notification for

the District of Nagpur on 25.11.2020, the provisions of Section 30(4)(b)

came to be amended by Maharashtra Act No.19 of 2022 making the

amendment effective from 23.09.2021. The entire State of Maharashtra had

been treated as one unit and as of now, elections to about 75% Gram

Panchayats in the entire State had been held. Insofar as Nagpur District is

concerned, of the 768 Gram Panchayats, elections were held in about 382

Gram Panchayats and elections for the remaining Gram Panchayats were to

be held. Referring to the order dated 24.11.2021 issued by the State

Election Commission, it was submitted that any interference at this stage

would result in affecting the elections to Gram Panchayats held earlier. It

would also result in wastage of public money and time that had already been

spent. The learned Assistant Government Pleader referred to the order dated

05.12.2022 passed by this Court in Sunil Gangaram Dudhpachare (supra) WP-4671-2023(J).odt 7/13

and submitted that a similar course be followed in the present proceedings.

The ratio of the decision in Union Territory of Ladakh and others (supra)

would not be applicable to the facts of the present case since the petitioners

therein had approached the Court within time. It was not the case insofar as

the present petitioner was concerned. Hence, it was submitted that the writ

petition was liable to be dismissed.

Shri J. B. Kasat, learned counsel appearing for the respondent no.3

also opposed the prayers made in the writ petition on the ground of delay

and laches in challenging the Notifications dated 05.03.2020 and 25.11.2020

at this belated stage. He too submitted that the observations in Sunil s/o

Gangaram Dudhpachare (supra) were applicable to the facts of the present

case. He referred to the provisions of Article 243 O of the Constitution of

India to submit that any interference at this stage would amount to

interfering with the election process.

6. In reply, it was submitted by the learned counsel for the petitioner

that the respondents were not in a position to justify the reservation

exceeding 50% and no reply was given by them to the contentions raised by

the petitioner. The petitioner had not sought setting aside of elections that

were already held but had merely sought a direction to reduce the excess

reservation so as to bring it in tune with what was prescribed by the statute

under Section 30(4) of the Act of 1959.

WP-4671-2023(J).odt 8/13

7. We have heard the learned counsel for the parties at length and we

have given due consideration to the respective submissions. Section 30 of

the Act of 1959 specifies the manner in which the election of Sarpanch is to

be held. Under Section 30(4)(a), the reservation at the offices of Sarpanchas

for Scheduled Castes and Scheduled Tribes is required to be in proportion

with the population of Scheduled Castes and Scheduled Tribes in the State.

Insofar as reservation for the category of Backward Class of Citizens is

concerned, the same is prescribed at 27% of the total number of offices in

the panchayats in view of Section 30(4) (b) with a rider that the total

reservation of offices in the panchayats should not be more than 50% of the

total seats in the concerned District. The proviso thereto states that half of

the offices so reserved shall be for women belonging to the category of

Backward Class of Citizens.

From the aforesaid, it is clear that the reservation in the offices of

Sarpanchas insofar as Scheduled Castes and Scheduled Tribes are concerned,

the same is required to be in proportion to their total population in the State.

Insofar as Backward Class of Citizens are concerned, the reservation for them

is 27% with a further stipulation that the reservation for Scheduled Castes,

Scheduled Tribes and Backward Class Citizens taken together cannot exceed

50% of the total seats in the District. Perusal of the Notifications dated

05.03.2020 and 25.11.2020 indicate that insofar as Nagpur District is

concerned, there are 768 posts of Sarpanch of which 437 posts are shown to WP-4671-2023(J).odt 9/13

be reserved for members from Scheduled Castes, Scheduled Tribes and

Backward Classes. This figure is obviously in excess of 50% of the total

number of offices of panchayats in Nagpur District. This is clear from the

fact that of the 768 offices of Sarpanchas, 331 offices are shown to be kept

for the 'Open' category.

8. The Hon'ble Supreme Court in Vikas Kishanrao Gawali (supra) has

in clear terms held that the reservation in favour of Other Backward Classes

in local bodies has been read to mean that such reservation for Other

Backward Classes may be upto 27% subject to the outer limit of 50%

aggregate in favour of Scheduled Castes, Scheduled Tribes and Other

Backward Classes taken together. This decision was rendered while

considering the challenge to the provisions of Section 12(2)(c) of the

Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. In the light of

this decision, the Rural Development Department introduced Legislative

Assembly Bill No.XXIII of 2021. The State Legislature then passed

Maharashtra Act No.19 of 2022 that came into effect from 23.09.2021. The

provisions of Section 30(4)(b) were substituted so as to bring the same in

tune with the decision in Vikas Kishanrao Gawali (supra). The legislative

mandate pursuant to the amendment effected from 23.09.2021 prohibits

total reservation in the Offices of Sarpanchas not to be more than 50% of the

total seats in the concerned District. It is thus clear that the Notifications WP-4671-2023(J).odt 10/13

dated 05.03.2020 and 25.11.2020 that were notified prior to the amendment

to Section 30(4)(b) with effect from 23.09.2021 which prescribe total

reservation in the offices of Sarpanchas to be more than 50% would be

contrary to Section 30(4)(b) as it now stands. To this extent the learned

counsel for the petitioner is justified in contending that these Notifications

fall foul of the upper limit of reservation as prescribed by Section 30(4)(b) of

the Act of 1959 as amended.

9. Having found that the reservation of the offices of Sarpanchas in

Nagpur District exceeds 50%, the question to be considered is as regards the

nature of relief that could be granted in the present proceedings. The

defence raised by the respondents on the aspect of delay and laches on the

part of the petitioner needs to be first considered. The respondents have

sought to rely upon the decision in Sunil s/o Gangaram Dudhpachare

(supra) in that regard. In the said case a similar challenge was raised to the

Notifications dated 05.03.2020 and 25.11.2020 by contending that the

reservation for the offices of Sarpanchas exceeded 50% in the Nagpur

District. This Court found that the said Notifications had been acted upon

insofar as 129 Gram Panchayats in the District were concerned. The said

writ petition had been filed on 18.10.2022 and the State Election

Commission had published the election programme for holding the elections

at various Gram Panchayats in the State on 09.11.2022. In view of the WP-4671-2023(J).odt 11/13

advanced stage of the election programme, the challenge was not considered

on merits while deciding the writ petition on 05.12.2022. The challenge to

the said Notifications was kept open and the writ petition was not

entertained on merits.

10. In the present case, we find that the petitioner had approached this

Court on 19.07.2023 much prior to issuance of the order dated 03.10.2023

by the State Election Commission. On the request made by the respondents

for grant of time, the proceedings were adjourned on 29.08.2023,

13.09.2023 and 03.10.2023. We therefore find that the petitioner is not

liable to be non-suited in the present proceedings on the ground of any delay

and laches since the petitioner had approached the Court before his elective

term of Office could expire. We have therefore entertained the challenge on

merits.

11. While we have found that the Notifications dated 05.03.2020 and

25.11.2020 prescribe reservation for the offices of Sarpanchas that exceeds

50% in the District of Nagpur thus being contrary to the provisions of Section

30(4) (b) as amended on 23.09.2021, it is required to be noted that on the

basis of the said Notifications general elections of 129 Gram Panchayats in

the District were held on 15.01.2021 and the election results were notified

on 21.01.2021. By the order dated 03.10.2023 issued by the State Election

Commission, elections are now to be held in 365 Gram Panchayats.

WP-4671-2023(J).odt 12/13

The total number of Gram Panchayats in the District are 768. Issuing a

direction at this stage to re-calculate the reservation at the offices of

Sarpanchas in the District so as to restrict it to 50% in terms of Section 30(4)

(b) of the Act of 1959 would require such exercise to be carried out with

regard to the remaining Gram Panchayats where elections are yet to be held.

Since the reservations in the offices of Sarpanchas in the district exceeds

50%, such exercise would definitely affect the reservations already

prescribed and that have been acted upon. We therefore refrain from

unsettling the issue of reservation of offices of Sarpanchas that have been

worked out in the District. Consequently, the reservations for the offices of

Sarpanchas where elections are scheduled also need not be disturbed.

Instead, we are of the considered opinion that it would be necessary for the

Rural Development Department to undertake a corrective exercise of issuing

a fresh Notification in exercise of powers under Rule 2A(2) of the Rules of

1964 by specifying the reservation in the offices of Sarpanchas in the entire

State in accordance with Section 30(4) of the Act of 1959. This would

consequentially require the reservation for each District to be re-determined

under Rule 2A(3) and (4) of the Rules of 1964. Undertaking such exercise

afresh for the entire State and thereafter for each District in the State would

ensure due compliance with the statutory requirements of Section 30(4) so

that the total reservation of the offices of Sarpanchas in the entire District

does not exceed 50%. We have kept in mind the ratio of the decision in WP-4671-2023(J).odt 13/13

Union Territory of Ladakh and others(supra) as well as other decisions relied

upon by the learned counsel for the petitioner while following such course.

12. Thus, while declining to grant the relief of setting aside the

Notification dated 05.03.2020 issued by the Rural Development Department

as well as the Notification dated 25.11.2020 published by the Collector,

Nagpur it is directed that the Rural Development Department shall undertake

necessary steps to issue a fresh notification under Rule 2A(2) of the Rules of

1964 so as to comply with the statutory requirements of Section 30(4) of the

Act of 1959. Thereafter the Collector, Nagpur shall take further steps as

required by Rule 2A(3) and (4) of the Rules of 1964 so as to ensure that the

reservation in the Offices of Sarpanchas in the District Nagpur does not

exceed 50% in terms of Section 30(4)(b) of the Act of 1959.

13. Rule stands disposed of with aforesaid directions leaving the

parties to bear their own costs.

                                (MRS. VRUSHALI V. JOSHI, J.)                (A.S.CHANDURKAR, J.)




                       Andurkar..




Signed by: Jayant S. Andurkar
Designation: PA To Honourable Judge
Date: 10/10/2023 17:46:35