Bombay High Court
Vitthal Maruti Gaikwad And Ors vs The State Of Maharashtra And Ors on 12 January, 2021
Bench: S.J. Kathawalla, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 96776 OF 2020
1. Vitthal Maruti Gaikwad,
Age : 62 years, Occupation : Agriculture
2. Ramesh Madhukar Nagane,
Age : 45 years, Occupation : Agriculture
3. Bapusaheb Raosaheb Nagane,
Age : 54 years, Occupation : Agriculture
4. Nitin Subhash Nagane,
Age : 33 years, Occupation : Agriculture
All residing at Village Ozewadi,
Taluka Pandharpur, District - Solapur. ... Petitioners
Versus
1. The State of Maharashtra,
Through its Department of Rural Development,
Mantralaya, Mumbai - 400 032.
2. The State Election Commission, Maharashtra,
Having its Office at New Administrative Building,
Madam Cama Road, Mumbai - 400 032.
3. The Collector of Solapur and Officer authorised
by the State Election Commissioner, having
office at Collector Office, Solapur.
4. The Sub-Divisional Officer, Pandharpur,
District Solapur.
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5. The Tahsildar, Pandharpur,
District Solapur.
6. The Block Development Officer (Class-I),
Panchayat Samiti, Pandharpur, Dist.- Solapur.
7. Gram Panchayat, Ozewadi,
Taluka - Pandharpur, District - Solapur. ... Respondents
.........
Mr. Tushar Sonawane instructed by Mr. Rupesh Bobade for the Petitioners.
Mr. A.I. Patel, Addl. GP alongwith Ms. K.N. Solunke, AGP and Ms. Geeta P.
Sonawane, AGP for the Respondent-State.
Mr. S.B. Shetye alongwith Mr. Irfan Shaikh and Ms. Sarika Shetye for the State
Election Commission.
.........
CORAM : S.J. KATHAWALLA AND
VINAY JOSHI, JJ.
DATED : JANUARY 12, 2021 P.C. [PER : S.J. KATHAWALLA, J.] :
1. By the above Writ Petition, the Petitioners seek to challenge the formation of wards of Respondent No.7 - Grampanchayat, Ozewadi, Taluka - Pandharpur, District
- Solapur.
2. The reliefs sought in the above Writ Petition are as follows :
"(a) that this Hon'ble Court be pleased to issue a writ of certiorari or any other writ, order or direction in the nature of certiorari calling for the records and proceedings in respect of formation of the wards of the Respondent No.7 finalized by the Respondent No.3 and after examining the validity, legality and propriety thereof, same be quashed and set aside.
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(b) that this Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing the Respondent Nos.3 to 6 to reform the wards of the Respondent No.7 in accordance with the provisions of the said Act of 1958 and guidelines issued by the Respondent No.2."
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 the objections and suggestions received were forwarded to the Sub-Divisional Officer ('SDO') on 20th February, 2020, for hearing.
3.3 The Petitioners filed their objection with regard to the formation of wards with the SDO on 14th February, 2020.
3.4 The SDO gave a hearing to the Petitioners on 29th February, 2020.
3.5 In the meantime, elections were suspended due to the pandemic.
3.6. The Order of suspension was revoked on 20th October, 2020.
3.7 The Collector rejected the objections filed by the Petitioners on 23 rd October, Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 ::: 4 / 10 17-WP-ST-96776-2020.odt 2020 on the ground that the wards have been formed after considering the census of 2011.
3.8 The final notification was published on 2nd November, 2020. 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 23 rd December to 30th December, 2020; Scrutiny of nominations was fixed on 31 st 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 15 th January, 2021.
3.7 The above Petition was filed by the Petitioners before this Court on 1 st December, 2020.
4. The Learned Advocate appearing for Respondent No.2 - State Election Commission has submitted that all steps to conduct the election have been taken by the Election Commission. The ballot papers are printed and fixed on the Electronic Voting Machines ('EVMs') which are already set up and are kept at a secured venue and will be opened on the day of the election in the presence of all the candidates.
5. 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 Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 ::: 5 / 10 17-WP-ST-96776-2020.odt 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."
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 1 2010 (6) Mh. L.J. 2 1995 SCC Suppl. (2) 305 Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 ::: 6 / 10 17-WP-ST-96776-2020.odt rejected by the Collector Satara by passing the impugned order. Paragraph 12 of the said Judgment is relevant and is reproduced hereunder :-
"12. ... It is therefore evident that the territorial area of a Panchayat is distinct and separate from the revenue limits of the village which also include group of villages. Similarly, Article 243-C deals with compositions of panchayats and Article 243-K deals with Elections to the Panchayats. Article 243-K(1) contemplates the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. [Sub clauses 2, 3, 4 of Article 243-K are not relevant for deciding the issue in question]. Article 243-O prohibits interference by the court in electoral matters and contemplates that notwithstanding anything in this Constitution the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article243-K,shall not be called in question in any court. Sub clause (b) stipulates that no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. It is therefore evident that as per the provisions of Article 243-O(a) once the power exercised by the State Election Commission in relation to delimitation of constituencies or allotment of seats to such constituencies of the Panchayat, such action cannot be called in question in any court. The issue is no more res integra and is covered by the decision of the Apex Court in case of State of Uttar Pradesh (cited supra). Relevant observations are in paragraph 45 of the said judgment, which reads thus :
"(45) WHAT is more objectionable in the approach of the High Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 :::
7 / 10 17-WP-ST-96776-2020.odt Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in 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 Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 ::: 8 / 10 17-WP-ST-96776-2020.odt 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 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 Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 ::: 9 / 10 17-WP-ST-96776-2020.odt 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 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 with regard to the formation of wards and reservation of seats between 7 th February, 2020 to 14th February, 2020. Pursuant thereto, the Petitioners filed their objections within the time prescribed. The SDO gave a hearing to the Petitioners and rejected their objections on 23rd October, 2020. The elections are scheduled to be held on 15 th January, 2021. In view of the decision of this Court in the case of Jadhav Shankar Dyandeo (supra), which follows the decision of State of Uttar Pradesh (Supra), the above Writ Petition cannot be entertained. The Apex Court in the case of Anugrah Narain Singh and another v. State of U.P. and others 3 held, "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." 3 (1996)6 SCC 303 (Paragraph 12) Kanchan P Dhuri ::: Uploaded on - 01/02/2021 ::: Downloaded on - 07/02/2021 11:55:17 ::: 10 / 10 17-WP-ST-96776-2020.odt However, it is 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. )
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