[Cites 53, Cited by 0]
Bombay High Court
Nilesh Chhaburao Bhojane vs State Of Maharashtra Throu. Its Govt ... on 9 January, 2026
2026:BHC-AS:846-DB
915-WP.156.2026.doc
JVS.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT
WRIT PETITION NO. 156 OF 2026
Date:
2026.01.09
16:29:05
+0530
Nilesh Chhaburao Bhojane } Petitioner
Versus
State of Maharashtra & Ors. } Respondents
Mr. Navroz Seervai, Senior Advocate with Mr. Mayur
Khandeparkar, Mr. Nishant Shashidharan, Mr. Vikramjit Singh
Garewal, Mr. Nakul Jain, Mr. Nivit Srivastava, Ms.Sneha Patil, Ms.
Aditi Sinha and Ms. Isha Vyas i/b. Maniar Srivastava Associates,
Advocates for the Petitioner.
Ms. Neha S. Bhide, Government Pleader with Mr. Kedar B. Dighe,
Additional Government Pleader and Ms. G. R. Raghuwanshi, AGP
for Respondent No. 1-State.
Mr. Irfan Shaikh with Mr. Akshay Pansare and Mr.Nipun Sawane,
Advocates for Respondent No. 2-State Election Commission.
Mr. Tejesh Dande with Mr. Bharat Gadhavi, Mr. Sarvesh
Deshpande and Mr. Vinayak Shelar, Advocates for Respondent
Nos. 3 to 6-NMMC.
Mr. A. Y. Sakhare, Senior Advocate with Mr. Ajay Varekar,
Advocates for Respondent No. 7.
Mr. Chirag Shah, Mr. Vishal Acharya, Adv. Bhavya Shah,
Advocates for Respondent No. 9.
Mr. Abhay Jadhav, Legal Head of NMMC, Ms. Anusha Shete, Asst.
Legal Officer of NMMC, Ms. Priti Lata Kurathi, Returning Officer
of NMMC and Mr. Sukhdeo Yedve, Assistant Returning Officer,
NMMC are present.
CORAM: SHREE CHANDRASHEKHAR, CJ. &
GAUTAM A. ANKHAD, J.
DATE: 9th JANUARY 2026
PER SHREE CHANDRASHEKHAR, CJ.:
On 8th January 2026, the following order was passed: -
"On 7th January 2026, the following order was passed :-
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"Mr. Navroz Seervai, the learned senior counsel for the
petitioner referred to the provisions under section 10(1D)
of the Maharashtra Municipal Corporations Act, 1949 and
laid a stress on the expression "councillor" to submit that
the disqualification as conceived under sub-section (1D)
shall apply to a "sitting councillor" and not to a candidate
who seeks to contest election as a councillor.
2. The learned senior counsel has then referred to the last
paragraph of the order dated 31st December 2025 and
submitted that the said order is ex-facie illegal and the
same is liable to be quashed by declaring the petitioner
eligible to contest the election for the post of a "councillor".
3. Mr. A.Y. Sakhare, the learned senior counsel appearing
for the respondent no.7 seeks some time for filing an
affidavit to bring on record certain factual aspects.
4. This request is declined for the reason that the order
under challenge must be tested with reference to the
materials which were before Election Returning Officer as
on the date of determination.
5. Post this matter tomorrow, that is, 8th January 2026
under the heading "High on Board", with an
understanding that this writ petition shall be disposed of
finally. The petitioner to complete the records. The
respondent no.7 may also produce the records which
were before the Election Returning Officer. Mr. Tejesh
Dande, the learned counsel appearing for the 6th
respondent-the Election Returning Officer shall provide
copies of the records to the learned counsel for the
petitioner and the respondent no.7 and file the same in
the registry of this Court in the course of the day."
2. At the outset, Mr. Surel Shah, the learned senior counsel for
the respondent no. 9 makes a statement that the respondent no.
9 has since withdrawn his candidature for election as Ward
Councilor for Ward No. 17A of Navi Mumbai Municipal
Corporation.
3. On instructions, Mr. Navroz Seervai, the learned senior
counsel for the petitioner states that as per the information given
to Mr. Mayur Khandeparkar, the learned assisting counsel, the
respondent no. 12 has also withdrawn his candidature.
4. Mr. Navroz Seervai, the learned senior counsel for the
petitioner states that all the respondents have been duly served
except the respondent no. 12.
5. As regards withdrawal of the candidature by the contesting
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candidates, Mr. Sachindra B. Shetye, the learned counsel for the
State Election Commission and Mr. Tejesh Dande, the learned
counsel for the Election Returning Officer shall take instructions
and apprise the Court on the next date of hearing.
6. Raising an objection to the maintainability of this writ
petition, Mr. A. Y. Sakhare, the learned senior counsel for the
respondent no. 7 submitted that there are judicial precedents and
constitutional bar under Article 243ZG of the Constitution of
India and, in view thereof, the present writ petition is not
maintainable. The learned senior counsel referred to a Full Bench
decision of this Court in "Karmaveer Avtade" 1 and endeavoured to
demonstrate that in view of the Full Bench judgment, a writ
petition challenging the acceptance or rejection of nomination
paper is not maintainable. Besides other decisions, the learned
senior counsel for the respondent no. 7 extensively read out the
decision in "Anugrah Singh"2 and submitted that the election for
the municipality which has been notified after 9 years in the State
of Maharashtra should not be impeded or stalled in any manner
whatsoever by virtue of an order passed by this Court. The
learned senior counsel also referred to the order passed by the
Hon'ble Supreme Court on 16th September 2025 in Special Leave
to Appeal (C) No. 19756 of 2021 and submitted that there is a
clear direction by the Hon'ble Supreme Court to conclude the
elections by 31st January 2026 and an attempt made in Review
Petition No. 180 of 2025 filed in Writ Petition No. 16799 of 2025
for an interim order has been rejected by this Court.
7. Mr. Tejesh Dande, the learned counsel for the Election
Returning Officer and Mr. Sachindra B. Shetye, the learned counsel
for the State Election Commission have also raised objections to
the maintainability of this writ petition.
8. On the other hand, Mr. Navroz Seervai, the learned senior
counsel for the petitioner referred to the provisions under sections
10 (1D), 11 and 12 of the Maharashtra Municipal Corporations Act,
1949 (in short, "the Act of 1949") and submitted that the order
passed by the Election Returning Officer on 31 st December 2025
holding the nomination of the petitioner invalid is ex-facie illegal.
This is the submission made on behalf of the petitioner that the
provisions under section 10(1D) of the Act of 1949 shall apply to a
sitting Councilor. Mr. Navroz Seervai, the learned senior counsel for
the petitioner submits that the issue whether section 10(1D) shall
apply to a sitting Councilor is no more res integra and any
controversy whatsoever stands settled by the decisions of this
Court in Writ Petition Nos. 9592 of 2013, 6775 of 2018, 12923 of
1. Karmaveer Tulshiram Avtade v. State Election Commission & Ors. : 2021 SCC OnLine Bom 1150
2. Anugrah Narain Singh & Anr. v. State of Uttar Pradesh & Ors. : (1996) 6 SCC 303
915-WP.156.2026.doc
2018 and other cases.
9. We have bestowed our careful consideration to the objection
raised on behalf of the respondents. Notwithstanding the bar under
Article 243ZG of the Constitution of India, the Hon'ble Supreme
Court has rendered judgments holding that the powers of the writ
Court under Article 226 of the Constitution of India can be
exercised provided such interference does not impede the process
of election. This has been considered by the Hon'ble Supreme Court
in "Ashok Kumar"3, "Jammu and Kashmir National Conference" 4
and "Kishorchandra Rathod"5.
10. Sections 10(1D), 11 and 12 of the Act of 1949 read as
under :-
10. Disqualification for being a councillor.
"10 (1D) A Councillor shall be disqualified for being a
Councillor, if such Councillor has constructed or constructs
by himself, his spouse or his dependent, any illegal or
unauthorised structure violating the provisions of this Act
or the Maharashtra Regional and Town Planning Act, 1966
or the rules or bye-laws framed under the said Acts; or has
directly or indirectly been responsible for, or helped in his
capacity as such Councillor in, carrying out such illegal or
unauthorised construction or has by written communication
or physically obstructed or tried to obstruct, any Competent
Authority from discharging its official duty in demolishing
any illegal or unauthorised structure. Such disqualification
shall be for the reminder of his term as a Councillor from
the date of the declaration of such structure to be illegal or
unauthorised by the concerned authority under the
provisions of the said Acts or, as the case may be, from the
date of commission of the act of interference or obstruction
by the Councillor against the Competent Authority.
11. Disabilities from continuing as councillor.
A councillor shall cease to hold office as such if at any
time during his term of office he, -
(a) becomes disqualified for being a councillor by
reason of the provisions of section 10;
(b) absents himself during three successive months
from the meetings of the Corporation, except from
temporary illness or other cause to be approved by the
Corporation;
3. Election Commission of India v. Ashok Kumar & Ors. : (2000) 8 SCC 216
4. Union Territory of Ladakh & Ors. v. Jammu and Kashmir Natiional Conference and
Anr.: (2023) SCC OnLine SC 1140
5. Kishorchandra Chhanganlal Rathod v. Union of India & Ors. : (2024) 13 SCC 237
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(c) absents himself from, or is unable to attend, the
meetings of the Corporation during six successive months
from any cause whatever, whether approved by the
Corporation or not; or
(d) acts as a councillor or as a member of any
committee of the Corporation by voting on, or taking part in
the discussion of, or asking any question concerning, any
matter in which he has directly or indirectly by himself or
his partner any such share or interest as is described in
clause (b) of sub-section (2) of section 10 of in which he is
professionally interested on behalf of a client, principal or
other person.
12. Questions as to disqualification to be
determined by the Judge.
(1) If any doubt or dispute arises whether a councillor
has ceased to hold office as such under section 11, such
councillor or any other councillor may, and at the request of
the Corporation, the Commissioner, shall refer the question
to the Judge.
(2) On a reference being made to the Judge under sub-
ssection (1), such councillor shall not be deemed to be
disqualified until the Judge after holding an inquiry in the
manner provided by or under this Act determines that he
has ceased to hold office."
11. Impeding or stalling the process of election, in our
opinion, is one thing and interference in a few Constituency or
Ward etc. is another thing. Being alive to limitations under
Article 226 of the Constitution of India, we are of the prima facie
opinion that there is no absolute bar to entertain a writ petition
in the matters like the present one which prima facie
demonstrate illegal and arbitrary exercise of powers by the
Election Returning Officer. Having regard to the non-applicability
of section 10(1D) of the Act of 1949, we are inclined to entertain
this writ petition and grant ad-interim order in terms of prayer
clauses (c) and (d) of the prayer clause, which read as under :-
"(c) that pending the hearing and final disposal of this Petition,
this Hon'ble Court be pleased to stay the effect, execution,
implementation and operation of the impugned order dated 31 st
December 2025 (Exhibit "O" to the Petition);
(d) that pending the hearing and final disposal of this Petition,
this Hon'ble Court be pleased to stay the general election 2025
to seat of councillor of ward no. 17A of the Navi Mumbai
Municipal Corporation."
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12. The State Election Commission, the Commissioner, Navi
Mumbai Municipal Corporation, the Chief Electoral Officer and
the Election Returning Officer, Navi Mumbai Municipal
Corporation shall not proceed further as regards the election on
the seat of Councillor for Ward No. 17A of the Navi Mumbai
Municipal Corporation.
13. Mr. Sachindra B. Shetye, the learned counsel for the
State Election Commission made a statement that the present
petitioner cannot be included in the list of validly nominated
candidate and he shall not be now able to contest the elections.
14. Let an affidavit be filed in this regard by tomorrow.
15. Post this matter tomorrow, that is, 9 th January 2026 under
the heading "For Final Disposal"".
2. Pursuant to the order dated 8th January 2026, the State
Election Commission has filed its reply through Mr. K.
Suryakrishnamurty, Deputy Secretary, State Election Commission
Maharashtra stating that the preparation for electronic voting
machines by affixing the ballot papers for the respective seat is in
progress and it is not possible to accept the nomination of the
petitioner and to permit him to contest the elections to the seat of
Councillor from Ward No. 17A of Navi Mumbai Municipal
Corporation. In the same breath, this affidavit states that the
process of EVM preparation will not be done for the seat 17A in
Navi Mumbai Municipal Corporation. In the affidavit dated 8 th
January 2026, 2nd respondent-State Election Commission states as
under: -
"5. On 15th December 2025, the State Election Commission had
issued the Election Program for General Elections to 29 Municipal
Corporations in the State including Navi Mumbai Municipal
Corporation.
6. As per the above-mentioned Election Program, the period for filing
nominations was from 23rd December 2025 to 30th December
2025. The scrutiny of the nomination papers was scheduled on 31
December 2025.
7. The period for withdrawal of candidature was till 3 pm on 2nd
January 2026 and the list of contesting candidates was
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scheduled to be published on 3rd January 2026.
8. At present, the preparation of Electronic Voting Machines by
affixing the ballot papers for the respective seats is in progress,
therefore it is not possible to accept the Nomination of the
Petitioner and permit the Petitioner to contest the General Election
to the seat of Councillor from Ward no 17A of Navi Mumbai
Municipal Corporation. In view of the order passed by this Hon'ble
Court on 8th January 2025, the process of EVM preparation will
not be done for the seat 17A in Navi Mumbai Municipal
Corporation.
9. I submit that in view of the Full Bench judgement of this
Hon'ble Court in Karmaveer Tulshiram Autade & Ors vs
State Election Commission & Ors reported in AIR 2021
Bom 90 this Hon'ble Court may pass appropriate
orders."
3. Mr. Irfan Shaikh, the learned counsel for the State Election
Commission referred to the Full Bench decision of this Court
delivered at Aurangabad in "Tilottama w/o Sanjay Kinkhede v.
Municipal Commissioner, Nagpur & Ors." 2021 (2) Mh.L.J. 685 to
submit that the disqualification under section 10(1D) of the Act of
1949 shall incur even to a candidate who seeks election as a Ward
Councillor.
4. Mr. Tejes Dande, the learned counsel for 6 th respondent -
Election Returning Officer , General Elections-2025 states that this
Court may permit the on-going elections to be held as per the
schedule and if the stay granted by this Court vide order dated 8 th
January 2026 is vacated, necessary arrangements shall be made as
per the directions of this Court.
5. In the "Short Submissions" tendered in the Court, the
respondent no.7 makes out the following grounds for vacating the
interim order dated 8th January 2026 and dismissing the writ
petition, which are extracted below: -
"1. The Respondent No.7 states and submits that the Panel System of
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voting is followed Navi Mumbai Municipal Elections. Four wards
form one constituency i.e. the voters in the constituency get to
choose 1 candidate each from 4 wards i.e. voter gets 4 votes. As
far the Petition is concerned Ward No.17 A, Ward No. 17 B, Ward
No.17 C and Ward No.17 D form one constituency.
2. If the elections for Ward No.17A is stayed or postponed its
automatically going to effect the elections for the other wards i.e.
Ward No. 17 B to 17D.
3. 45,000 Voters for the constituency may have to come twice for
voting and declaration of results for the entire Navi Municipal
Elections will have to be stayed as the outcome may effect the
results of this constituency if results are declared. Since 45000
voters voting for 3 people may be of no use.
4. The statutory Right of all candidates to have a free and fair and
non-biased voting may get affected, if the elections for all wards
are not conducted together.
5. The candidates of all the four wards will have to campaign again
if the election of one ward is postponed and therefore the
candidates of other 3 wards also need to be heard and need to be
made a party in the Petition.
6. The Fundamental right of voters will be affected if elections are
postponed since on the subsequent date of voting some voters of
the constituency may not be available as that day may not be a
holiday for the voters. Declaring holiday in the said constituency
also may not help since some voters may be working outside the
constituency.
7. If the name of the Petitioner is allowed to be added then the list of
contesting candidates and symbols will have to be allotted and
some more arrangements will have to be made and therefore
either the polling date will have to be changed or the results date
will have to be changed which will cause of lot of inconvenience
and hardships on the State Election Commission.
8. Even if election of ward no.17A is stayed and required to be
rescheduled then counting and declaration of result of entire/all
wards of Municipal Corporation will have postponed, which in
effect will be postponing election of entire Municipal Corporation
i.e. 111 Councilors.
9. Considering the above the Petition may be rejected and interim
order be vacated or in the alternative if this Hon'ble Court is of the
opinion that the Petition deserves to be allowed then necessary
orders be passed considering the abovementioned scenario so that
the candidates and the voters get a free and fair election."
6. Mr. A. Y. Sakhare, the learned senior counsel for the
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respondent no.7 draws our attention to the election programme
published on 2nd January 2026 and submits that the elections for
the Navi Mumbai Municipal Corporation cannot be stalled. The
learned senior counsel refers to the notification dated 6 th October
2025 which indicates that the total number of Councillors to be
elected is 111. There are 27 wards of 4-Councillors and one ward of
3-Councillors. The notification dated 6 th October 2025 issued under
section 5 of the Maharashtra Municipal Corporation Act, 1949 (for
short, the Act of 1949) indicates that there is no 5-Councillors ward
within the territorial area of Navi Mumbai Municipal Corporation.
As to Ward No. 17, this is the submission of Mr. A. Y. Sakhare, the
learned senior counsel that Ward No. 17 is a 4-Councillors ward in
which every electorate has right to cast four votes and if the election
for Ward No.17A is stalled and held on a subsequent date, the
voters would have to come again to cast their votes.
7. To elaborate upon the powers of the writ Court under Article
226 of the Constitution of India in the light of the judgments
rendered by the Hon'ble Supreme Court, we may first indicate that
in "Anugrah Narain Singh & Anr. v. State of Uttar Pradesh & Ors."
(1996) 6 SCC 303 by virtue of an order passed by the High Court
the notification for holding municipal elections in the State of Uttar
Pradesh was stayed. This was the distinctive feature in the said
case that there were two conflicting decisions relating to the same
elections in the writ petitions filed by the aggrieved parties, one in
the Allahabad High Court, Principal Seat and another at Lucknow
Bench. The Principal Seat of Allahabad High Court had stopped
the entire election process ignoring the decision of the Lucknow
Bench and, that too, one week prior to the voting for the
municipality. Another important feature which was found by the
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Hon'ble Supreme Court in the said case was that the High Court
had ignored that the process of reservation for various wards and
de-limitation of the constituencies were completed before June
1995. There were ample opportunity under the statutory provisions
to raise objections before finalization of the de-limitation process. It
was in that context that the Hon'ble Supreme Court held that the
validity of the laws relating to de-limitation and allotments of seat
made under Article 243ZA cannot be questioned in any other
Court.
8. In paragraphs 16 to 22, 37 and 39 of the reported judgment
in "Union Territory of Ladakh & Ors. v. Jammu and Kashmir National
Conference & Anr." (2023) SCC OnLine SC 1140, the Hon'ble
Supreme Court observed as under: -
"16. It requires no reiteration that the powers of this Court and the
High Courts vested under the Constitution cannot be abridged,
excluded or taken away, being part of the Basic Structure of our
Constitution. Reference need only be made to decisions in His
Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala,
(1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp
SCC 1; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; L
Chandra Kumar v. Union of India, (1997) 3 SCC 261 and more
recently, to Kalpana Mehta v. Union of India, (2018) 7 SCC 1 and
Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1, all of
which were rendered by a Bench of 5 or more learned Judges.
Section 12 of the 1997 Act need not detain us. Insofar as Section
13 of the 1997 Act is concerned, it is by now too well-settled that
the availability of alternative efficacious remedy is no bar to the
exercise of high prerogative writ jurisdiction, in the light of various
decisions, including but not limited to, State of Uttar Pradesh v.
Mohammad Nooh, 1958 SCR 595; Madhya Pradesh State Agro
Industries Development Corporation Ltd. v. Jahan Khan, (2007) 10
SCC 88; Maharashtra Chess Association v. Union of India, (2020)
13 SCC 285. Even on the anvil of Radha Krishan Industries v.
State of Himachal Pradesh, (2021) 6 SCC 771, Section 13 of the
1997 Act does not, and cannot, impede a Constitutional Court
from proceeding further. We do not wish to multiply established
authorities on the point but would add the very recent Godrej Sara
Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority,
915-WP.156.2026.doc
2023 SCC OnLine SC 95 to the list enumerated above.
17. At the threshold, it is noted that the ECI deals with the conduct of
elections to the Parliament, the State Legislative Assemblies and
the State Legislative Councils. The Union Territory of Ladakh does
not currently have a Legislative Assembly. The last election to the
Parliamentary constituency was held in the year 2019. That said,
first things first. The Legal Opinion by the Law Department
remains internal advice, and advice alone, and as such, the
learned ASG was correct in contending that the same would not
create/confer any right in favour of R 1. In Mahadeo v. Sovan
Devi, 2022 SCC OnLine SC 1118 (where one of us, Vikram Nath,
J. was part of the coram), the Court, after considering various
case-laws, held that "It is well settled that inter-departmental
communications are in the process of consideration for appropriate
decision and cannot be relied upon as a basis to claim any right.
..."
18. In Kalpana Mehta (supra), Hon. Dipak Misra, C.J.I., with whom 4
learned Judges concurred, stated:
"40. While focussing on the exercise of the power of judicial
review, it has to be borne in mind that the source of authority is
the Constitution of India. The Court has the adjudicating authority
to scrutinise the limits of the power and transgression of such
limits. The nature and scope of judicial review has been succinctly
stated in Union of India v. Raghubir Singh [Union of India v.
Raghubir Singh, (1989) 2 SCC 754] by R.S. Pathak, C.J. thus :
(SCC p. 766, para 7)
"7. ... The range of judicial review recognised in the superior
judiciary of India is perhaps the widest and the most extensive
known to the world of law. ... With this impressive expanse of
judicial power, it is only right that the superior courts in India
should be conscious of the enormous responsibility which rest on
them. This is specially true of the Supreme Court, for as the
highest Court in the entire judicial system the law declared by it
is, by Article 141 of the Constitution, binding on all courts within
the territory of India."
And again : (SCC p. 767, para 11)
"11. Legal compulsions cannot be limited by existing legal
propositions, because there will always be, beyond the frontiers of
the existing law, new areas inviting judicial scrutiny and judicial
choice-making which could well affect the validity of existing legal
dogma. The search for solutions responsive to a changed social
era involves a search not only among competing propositions of
law, or competing versions of a legal proposition, or the modalities
of an indeterminacy such as "fairness" or "reasonableness", but
also among propositions from outside the ruling law,
corresponding to the empirical knowledge or accepted values of
present time and place, relevant to the dispensing of justice within
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the new parameters."
The aforesaid two passages lay immense responsibility on the
Court pertaining to the exercise of the power keeping in view the
accepted values of the present. An organic instrument requires the
Court to draw strength from the spirit of the Constitution. The
propelling element of the Constitution commands the realisation of
the values. The aspiring dynamism of the interpretative process
also expects the same.
41. This Court has the constitutional power and the authority to
interpret the constitutional provisions as well as the statutory
provisions. The conferment of the power of judicial review has a
great sanctity as the constitutional court has the power to declare
any law as unconstitutional if there is lack of competence of the
legislature keeping in view the field of legislation as provided in
the Constitution or if a provision contravenes or runs counter to
any of the fundamental rights or any constitutional provision or if
a provision is manifestly arbitrary.
42. When we speak about judicial review, it is also necessary to
be alive to the concept of judicial restraint. The duty of judicial
review which the Constitution has bestowed upon the judiciary is
not unfettered; it comes within the conception of judicial restraint.
The principle of judicial restraint requires that Judges ought to
decide cases while being within their defined limits of power.
Judges are expected to interpret any law or any provision of the
Constitution as per the limits laid down by the Constitution.
43. In S.C. Chandra v. State of Jharkhand [S.C. Chandra v. State
of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897], it has
been ruled that the judiciary should exercise restraint and
ordinarily should not encroach into the legislative domain. In this
regard, a reference to a three-Judge Bench decision in Suresh
Seth v. Indore Municipal Corpn. [Suresh Seth v. Indore Municipal
Corpn., (2005) 13 SCC 287] is quite instructive. In the said case, a
prayer was made before this Court to issue directions for
appropriate amendment in the M.P. Municipal Corporation Act,
1956. Repelling the submission, the Court held that it is purely a
matter of policy which is for the elected representatives of the
people to decide and no directions can be issued by the Court in
this regard. The Court further observed that this Court cannot
issue directions to the legislature to make any particular kind of
enactment. In this context, the Court held that under our
constitutional scheme, Parliament and Legislative Assemblies
exercise sovereign power to enact law and no outside power or
authority can issue a direction to enact a particular kind of
legislation. While so holding, the Court referred to the decision in
Supreme Court Employees' Welfare Assn. v. Union of India
[Supreme Court Employees' Welfare Assn. v. Union of India, (1989)
4 SCC 187 : 1989 SCC (L&S) 569] wherein it was held that no
court can direct a legislature to enact a particular law and
similarly when an executive authority exercises a legislative
power by way of a subordinate legislation pursuant to the
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delegated authority of a legislature, such executive authority
cannot be asked to enact a law which it has been empowered to
do under the delegated authority.
44. Recently, in Census Commr. v. R. Krishnamurthy [Census
Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC
(L&S) 589], the Court, after referring to Premium Granites v. State
of T.N. [Premium Granites v. State of T.N., (1994) 2 SCC 691], M.P.
Oil Extraction v. State of M.P. [M.P. Oil Extraction v. State of M.P.,
(1997) 7 SCC 592], State of M.P. v. Narmada Bachao Andolan
[State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 :
(2011) 3 SCC (Civ) 875] and State of Punjab v. Ram Lubhaya
Bagga [State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC
117 : 1998 SCC (L&S) 1021], held: (R. Krishnamurthy case
[Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1
SCC (L&S) 589], SCC p. 809, para 33)
"33. From the aforesaid pronouncement of law, it is clear as
noonday that it is not within the domain of the courts to embark
upon an enquiry as to whether a particular public policy is wise
and acceptable or whether a better policy could be evolved. The
court can only interfere if the policy framed is absolutely
capricious or not informed by reasons or totally arbitrary and
founded ipse dixit offending the basic requirement of Article 14 of
the Constitution. In certain matters, as often said, there can be
opinions and opinions but the court is not expected to sit as an
appellate authority on an opinion."
45. At this juncture, we think it apt to clearly state that the
judicial restraint cannot and should not be such that it amounts to
judicial abdication and judicial passivism. The Judiciary cannot
abdicate the solemn duty which the Constitution has placed on its
shoulders i.e. to protect the fundamental rights of the citizens
guaranteed under Part III of the Constitution. The constitutional
courts cannot sit in oblivion when fundamental rights of
individuals are at stake. Our Constitution has conceived the
constitutional courts to act as defenders against illegal intrusion of
the fundamental rights of individuals. The Constitution, under its
aegis, has armed the constitutional courts with wide powers
which the courts should exercise, without an iota of hesitation or
apprehension, when the fundamental rights of individuals are in
jeopardy. Elucidating on the said aspect, this Court in Virendra
Singh v. State of U.P. [Virendra Singh v. State of U.P., AIR 1954 SC
447] has observed : (AIR p. 454, para 34)
"34. ... We have upon us the whole armour of the Constitution and
walk from henceforth in its enlightened ways, wearing the
breastplate of its protecting provisions and flashing the flaming
sword of its inspiration."
46. While interpreting fundamental rights, the constitutional
courts should remember that whenever an occasion arises, the
courts have to adopt a liberal approach with the object to infuse
lively spirit and vigour so that the fundamental rights do not
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suffer. When we say so, it may not be understood that while
interpreting fundamental rights, the constitutional courts should
altogether depart from the doctrine of precedents but it is the
obligation of the constitutional courts to act as sentinel on the qui
vive to ardently guard the fundamental rights of individuals
bestowed upon by the Constitution. The duty of this Court, in this
context, has been aptly described in K.S. Srinivasan v. Union of
India [K.S. Srinivasan v. Union of India, AIR 1958 SC 419]
wherein it was stated : (AIR p. 433, para 50)
"50. ... All I can see is a man who has been wronged and I can
see a plain way out. I would take it."
47. Such an approach applies with more zeal in case of Article 32
of the Constitution which has been described by Dr. B.R.
Ambedkar as "the very soul of the Constitution -- the very heart of
it -- the most important Article". Article 32 enjoys special status
and, therefore, it is incumbent upon this Court, in matters under
Article 32, to adopt a progressive attitude. This would be in
consonance with the duty of this Court under the Constitution,
that is, to secure the inalienable fundamental rights of
individuals."
(emphasis supplied)
19. The observations afore-referred are in perfect sync with what is
expected of Constitutional Courts. They are not restricted only to
Articles 32 or 226 of the Constitution but lay down a talisman of
sorts.
20. The learned ASG also submitted that the Appellants were entitled to
take an independent decision. This goes against their stand before
the learned Division Bench. If we were to agree with this, the obvious
import, then, would be that the Appellants were required to take a
decision independently. As noted in Paragraphs 5 and 11 of the
Impugned Judgment, the Appellants contended that the ECI was the
competent authority to allot symbols and not the Election Authority.
What then was the reason for the Appellants to shift stands? When
read in conjunction with the finding at Paragraph 13 of the Impugned
Judgment the Appellants' acts leave no shred of doubt in our minds,
that circumstances forcing this Court to intercede have arisen. Let us
for a moment, however, consider that the Appellants, as now sought
to be projected, were entitled to arrive at an independent decision.
Yet, such decision could not be whimsical, arbitrary or capricious. It
would necessarily have to be : (a) in accordance with lawful
discretion; (b) reasonable, and; (c) equitable and just. The Court
would indicate that a genuine request, in the attendant facts, could
not have been turned down only on the ground that there was no
provision for the same, when such request could be acceded to (i)
without any violation of law, and; (ii) is within the jurisdictional
domain and capacity of the authority concerned, and; (iii) does not
prejudice any other stakeholder, and; (iv) does not militate against
public interest.
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21. The High Court, being a Constitutional Court, is not, by any stretch of
imagination, precluded from issuing a direction of the nature issued
by it in the instant case, under Article 226 of the Constitution of
India, more so when such direction does not violate any statutory
provision. In High Court of Tripura v. Tirtha Sarathi Mukherjee,
(2019) 16 SCC 663, this Court had answered, in the affirmative, as
to the power of the High Courts under Article 226 to direct for
actions, in a rare and exceptional situation, which do not find
mention in the provisions concerned. Noticing and relying upon High
Court of Tripura (supra), in Aish Mohammad v. State of Haryana,
2023 SCC OnLine SC 736, we held:
"24. Moreover, the learned Civil Judge (Junior Division) found no
ground to interfere with the adverse remarks yet granted liberty to
the appellant to move for expunction thereof. The learned Civil
Court erred in assuming that it had the power to do so, in the
absence of any such provision in the Punjab Police Rules, 1934.
There may be cases where a High Court under Articles 226
or 227 of the Constitution of India or this Court in exercise
of its constitutional powers may specifically direct for fresh
consideration of a representation, even in the absence of
specific provisions. In High Court of Tripura v. Tirtha Sarathi
Mukherjee, (2019) 16 SCC 663, the question that arose was
whether, in the absence of a statutory provision, a writ petitioner
could seek reevaluation of examination answer scripts?
Answering, this Court held:
"20. The question however arises whether even if there is no legal
right to demand re-valuation as of right could there arise
circumstances which leave the Court in any doubt at all. A grave
injustice may be occasioned to a writ applicant in certain
circumstances. The case may arise where even though there is
no provision for re-valuation it turns out that despite giving the
correct answer no marks are awarded. No doubt this must be
confined to a case where there is no dispute about the correctness
of the answer. Further, if there is any doubt, the doubt should be
resolved in favour of the examining body rather than in favour of
the candidate. The wide power under Article 226 may
continue to be available even though there is no provision
for re-valuation in a situation where a candidate despite having
giving correct answer and about which there cannot be even the
slightest manner of doubt, he is treated as having given the wrong
answer and consequently the candidate is found disentitled to
any marks.
21. Should the second circumstance be demonstrated to be
present before the writ court, can the writ court become
helpless despite the vast reservoir of power which it
possesses? It is one thing to say that the absence of provision for
re-valuation will not enable the candidate to claim the right of
evaluation as a matter of right and another to say that in no
circumstances whatsoever where there is no provision for re-
valuation will the writ court exercise its undoubted constitutional
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powers? We reiterate that the situation can only be rare
and exceptional."
(emphasis supplied)"
(emphasis supplied by us via bolding)
22. Elections to any office/body are required to be free, fair and
transparent. Elections lie at the core of democracy. The authority
entrusted by law to hold/conduct such elections is to be completely
independent of any extraneous influence/consideration. It is
surprising that the Union Territory of Ladakh not only denied R 1 the
Plough symbol, but even upon timely intervention by the learned
Single Judge, has left no stone unturned not only to resist but also
frustrate a cause simply by efflux of time."
37. We would indicate that the restraint, self-imposed, by the Courts as a
general principle, laid out in some detail in some of the decisions
supra, in election matters to the extent that once a notification is
issued and the election process starts, the Constitutional Courts,
under normal circumstances are loath to interfere, is not a
contentious issue. But where issues crop up, indicating unjust
executive action or an attempt to disturb a level-playing field
between candidates and/or political parties with no justifiable or
intelligible basis, the Constitutional Courts are required, nay they are
duty-bound, to step in. The reason that the Courts have usually
maintained a hands-off approach is with the sole salutary objective
of ensuring that the elections, which are a manifestation of the will of
the people, are taken to their logical conclusion, without delay or
dilution thereof. In the context of providing appropriate succour to the
aggrieved litigant at the appropriate time10, the learned Single
Judge acted rightly. In all fairness, we must note that the learned
ASG, during the course of arguments, did not contest the power per
se of the High Court to issue the directions it did, except that the
same amounted to denying the Appellants their discretion. As stated
hereinbefore, we are satisfied that in view of the 1968 Order, the
Appellants' discretion was not unbridled, and rather, it was guided
by the 1968 Order.
39. This case constrains the Court to take note of the broader aspect of
the lurking danger of authorities concerned using their powers
relating to elections arbitrarily and thereafter, being complacent,
rather over-confident, that the Courts would not interfere. The
misconceived notion being that in the ultimate eventuate, after
elections are over, when such decisions/actions are challenged, by
sheer passage of time, irreversible consequences would have
occurred, and no substantive relief could be fashioned is just that -
misconceived. However, conduct by authorities as exhibited herein
may seriously compel the Court to have a comprehensive re-think, as
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to whether the self-imposed restrictions may need a more liberal
interpretation, to ensure that justice is not only done but also seen to
be done, and done in time to nip in the bud any attempted
misadventure. We refrain from further comment on the Appellants,
noting the pendency of the contempt proceeding."
9. In paragraphs 4 to 8 of the reported judgment in
"Kishorchandra Chhanganlal Rathod v. Union of India & Ors." (2024)
13 SCC 237, the Hon'ble Supreme Court observed as under: -
"4. We, however, do not approve the view taken by the High Court
that the order of delimitation of constituencies, issued in exercise
of statutory powers under the Delimitation Act, is entirely
insusceptible to the powers of judicial review exercisable under
Article 226 of the Constitution.
5. Although Article 329 undeniably restricts the scope of judicial
scrutiny re: validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies, it
cannot be construed to have been imposed for every action of
delimitation exercise. If judicial intervention is deemed completely
barred, citizens would not have any forum to plead their
grievances, leaving them solely at the mercy of the Delimitation
Commission. As a constitutional court and guardian of public
interest, permitting such a scenario would be contrary to the
Court's duties and the principle of separation of powers.
6. This understanding is supported by a three-Judge Bench decision
of this Court in Dravida Munnetra Kazhagam v. State of T.N.
[Dravida Munnetra Kazhagam v. State of T.N., (2020) 6 SCC 548,
para 14] where the Court was called upon to interpret Articles
243-O and 243-ZG of the Constitution, which mirror the
aforementioned Article 329. Rejecting the contention that these
provisions place a complete bar on judicial intervention, it was
noted that a constitutional court can intervene for facilitating the
elections or when a case for mala fide or arbitrary exercise of
power is made out. Using this, the Court directed delimitation to
be conducted for nine new districts. Recently, a three-Judge Bench
of this Court in State of Goa v. Fouziya Imtiaz Shaikh [State of Goa
v. Fouziya Imtiaz Shaikh, (2021) 8 SCC 401, para 67] , affirmed
the ratio of the above-cited decision while discussing principles on
Article 329(a), and rejected the contention which sought to prove it
as per incuriam.
7. Therefore, while the Courts shall always be guided by the settled
principles regarding scope, ambit and limitations on the exercise of
judicial review in delimitation matters, there is nothing that
precludes them to check the validity of orders passed by the
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Delimitation Commission on the touchstone of the Constitution. If
the order is found to be manifestly arbitrary and irreconcilable to
the constitutional values, the Court can grant the appropriate
remedy to rectify the situation.
8. In order to prove that any kind of judicial intervention is fully
prohibited, the respondents relied upon a Constitution Bench
decision of this Court in Meghraj Kothari v. Delimitation
Commission [Meghraj Kothari v. Delimitation Commission, 1966
SCC OnLine SC 12] . A closer examination of the aforementioned
case, however, would show that the Court in that case restricted
judicial intervention when the same would unnecessarily delay
the election process. This is writ large from the following
paragraph, where the Court explicated the reason behind
adopting the hands-off approach: (SCC OnLine SC para 20)
"20. In our view, therefore, the objection to the delimitation of
constituencies could only be entertained by the Commission
before the date specified. Once the orders made by the
Commission under Sections 8 and 9 were published in the
Gazette of India and in the Official Gazettes of the States
concerned, these matters could no longer be reagitated in a
court of law. There seems to be very good reason behind
such a provision. If the orders made under Sections 8 and 9
were not to be treated as final, the effect 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. Section 10(2) of the Act clearly demonstrates
the intention of the legislature that the orders under Sections
8 and 9 published under Section 10(1) were to be treated as
law which was not to be questioned in any court. (emphasis
supplied)"
10. In "Dravida Munnetra Kazhagam v. State of Tamil Nadu"
(2020) 6 SCC 548, the Hon'ble Supreme Court rejected the
contention that the provisions under Articles 243-O and 243-ZG of
the Constitution place a complete bar on judicial intervention. It
was held that a Constitutional Court can intervene to facilitate the
elections or where a case for mala fide or arbitrary exercise of
powers is made out. The decision in "Meghraj Kothari v. Delimitation
Commission & Ors." (1966) SCC OnLine SC 12, was considered by
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the Hon'ble Supreme Court in "Kishorchandra Chhaganlal Rathod".
The Hon'ble Supreme Court held that the decision in "Meghraj
Kothari" restricted the judicial intervention in cases where such
intervention would unnecessarily delay the the election process. As
we have noted in the order dated 8 th January 2026, that interference
in the matters like the present one would not impede the process of
Municipal Elections. In the present case, without any inquiry or
adjudication it is found on the face of the records that the
nomination paper of the petitioner has been held invalid by
applying a wrong provision of law. There is not even a need to
reflect on the argument made on behalf of the respondent no.7 that
the whole of the provisions under section 10 shall apply to a
candidate seeking election as a Ward Councillor. This case is
definitely of a unusual and exceptional kind. That was precisely the
reason we granted interim order on 8 th January 2026. In "Tilottama
Sanjay Kinkhede", Mrs. Tilottama Sanjay Kinkhede and Mrs.
Pragati Ajay Patil had contested the elections for Prabhag 14-D and
Mrs. Pragati Ajay Patil was declared elected. In the background of
this fact that Mrs. Pragati Ajay Patil was an elected Councillor, the
scope of section 10(1D) of the Act of 1949 was considered by the
Full Bench while delivering its opinion that the disqualification
under section 10(1D) shall incur even where the elected candidate
was found to have made illegal/unauthorized construction prior to
his election. We need to keep in mind the fact-situation in which
the decision in "Tilottama Sanjay Kinkhede" was delivered by the
Full Bench. In the present case, there is however no dispute that
the petitioner is not an elected Ward Councillor and his nomination
paper has been held invalidated on the ground that he has incurred
disqualification under section 10(1D). We have referred to the
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judicial precedents of this Court whereunder a consistent view has
been taken by this Court that the disqualification under section
10(1D) shall not incur to a candidate at the stage of his filing of
nomination paper. Section 11 of the Act of 1949 makes it further
clear that a Councillor shall cease to hold office and become
disqualified for being a Councillor, if at any time during his term of
office, he does the specified acts mentioned under sub-section (1) to
section 10. There is no indication as to disqualification for
contesting an election as Ward Councillor if the candidate is found
to have made an illegal/unauthorize construction. Section 12
provides that the Commissioner of the Corporation shall refer the
question to the Judge if any doubt or dispute arises whether a
Councillor has ceased to hold office as such under section 11. It
further provides that on a mere reference made to the Judge under
sub-section (1) such Councillor shall not be deemed to be
disqualified until the Judge after holding an inquiry in the manner
provided by or under this Act determines that he has ceased to hold
office. The order dated 31 st December 2025 is patently illegal and is
accordingly quashed. Consequently, the nomination paper
submitted by the petitioner is held valid and we hereby direct the
respondent-Election Returning Officer to include his name in the
list of the candidates who are permitted to contest the election
from Ward No.17A, Navi Mumbai Municipal Corporation.
11. Writ Petition No. 156 of 2026 is allowed in terms of prayers (a)
and (b). The elections as per schedule shall continue with necessary
arrangements, if any, to be made by the respondent nos.2, 3, 4 and
6. The said respondents shall do the needful by virtue of the order
passed by this Court, holding that the nomination paper submitted
by the petitioner is valid and his name shall be included in the list
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of validly nominated candidates to contest the election from Ward
No.17A of the Navi Mumbai Municipal Corporation.
12. Interim order dated 8th January 2026 is vacated.
13. Parties to act on an authenticated copy of this order.
[GAUTAM A. ANKHAD, J.] [CHIEF JUSTICE]
