Bombay High Court
Shilpa Dinesh Pardeshi vs The State Of Maharashtra And Others on 2 December, 2016
Author: R.M.Borde
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10941 OF 2016
Shilpa w/o Dinesh Pardeshi,
Age: 41 years, occ: social work/household,
R/o Depo Road, Navjeevan Colony,
Vaijapur, Tq. Vaijapur,
District Aurangabad Petitioner
Versus
1 The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai
2 The State Election Commission,
Annex Building, In front of Mantralaya,
Mumbai,
through Its Deputy Secretary,
3 The Collector, Aurangabad
District Aurangabad
4 The Municipal Council,
Vaijapur, Tq. Vaijapur,
District Aurangabad,
through its Chief Executive Officer Respondents
And
Raafe Hasan s/o Ali Hasan,
age: 36 years, Occ: Legal Practitioner,
R/o Peerzad Lane, Post: Vaijapur,
Tq.Vaijapur, District Aurangabad. Intervener
Mr.R.N. Dhorde, Senior Counsel i/by Mr. V.R. Dhorde, advocate for
the petitioner
Mr. Rajendra S. Deshmukh, Special Counsel with Mr. S.B.
Yawalkar, AGP for Respondents No.1 & 3.
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Mr. S.T. Shelke advocate for Respondent No.2
Mr. N.D. Sonawane advocate for respondent No.4
Mr. V.J. Dixit Senior Counsel i/by Mr.Sushant V. Dixit, advocate for
intervener
CORAM : R.M. BORDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON: 24th November, 2016
PRONOUNCED ON: 02nd December, 2016.
ORAL JUDGMENT (Per R.M.Borde, J.):
Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2 The Constitution Bench of the Supreme Court, in the matter of Mohindar Singh Gill Vs. Chief Election Commissioner of New Delhi, 1978 SCC 405, has referred to pervasive philosophy of the democratic elections which Sir Winston Churchil vivified in matchless words:-
" At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount off rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.
If we may add, the little large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by mean 'dressed in little, brief authority'. For 'be you ever so The moral may be stated with telling terseness in the words of William Pitt: "Where laws end, tyranny begins". Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {3} wp1094116a.odt by Benjamin Disraeli (Vivian Grey, BK VI Ch 7):
I repeat . . . that all power is a trust that we are accountable for its exercise - that, from the people and for the people, all springs, and all must exist".
26 Further, the Court in (para 23) observed thus:
"Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. "The right of election is the very essence of the constitution (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more. "
3 The provisions relating to conduct and control of elections to Panchayat and Municipalities, grass root level institutions of democracy, find place in parts IX and IX-A respectively of the Constitution of India. The power of superintendence, direction and control for preparation of electoral rolls for, and conduct of, all the elections to Panchayats as well as the Municipalities vest in the State Election Commission consisting of State Election Commissioner to be appointed by the Governor in view of Article 243-K of the Constitution of India. Clause (4) of Article 243-K of the Constitution of India provides that subject to the provisions of this constitution, Legislature of a State may, by law, make provisions with respect to all the matters relating to, or in connection with, elections to Panchayats. Article ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {4} wp1094116a.odt 243-ZA which relates to election to Municipalities refers to article 243-K. In the matter of A.C. Jose Vs Siven Pillai and others, AIR 1984 SC 921, in para No.25 it is observed thus :
"25 To sum up, therefore, the legal and constitutional position as regards conduct of elections is as follows:
(a) when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections.
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Art. 324.
(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Art. 324 to give any direction in respect of the conduct of election. "
4 It is thus clear that in the absence of legislation, the Commission is free to pass orders in respect of conduct of elections and wherever there is an Act and express Rules made thereunder, it is not open for the Commission to override the Act and Rules and pass orders and issue directions in disobedience of mandate of the Act and Rules.
5 There cannot be a duel opinion as regards the ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {5} wp1094116a.odt preposition that in terms of article 243-ZG of the Constitution, there is an absolute and complete bar for the Courts in considering any matter relating to the municipal elections of any kind whatsoever after the publication of the notification for holding municipal elections. The bar imposed by article 243-ZG is two fold.
(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 243-ZA shall not be called in question in any Court of law; and (b) No election to any Municipality 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. Moreover, it is well settled by now that if the election is imminent or well underway, the Court should not intervene to stop the election process. If it is allowed to be so, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the election process. In the matter of Anugraha Narain Singh Vs. State of UP and others, 1997 1 Mah. L.J. 132 = 1996, 6 SCC 303, the Supreme court quashed interim orders passed by the High Court and observed that if the election is imminent or well underway, the Court should not interfere 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. The importance of holding elections at regular intervals cannot be over-emphasized. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies.::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 :::
{6} wp1094116a.odt 6 It, thus, will have to be concluded that so far as the matters relating to superintendence, direction and control for the preparation of electoral rolls and conduct of elections of the Municipalities are concerned, the power vest in State Election Commission and that the Legislature of the State may by law, make provisions with respect to all the matters relating to or in connection with the elections of the Municipalities. It is also clear that if there is any law made by the State Legislature in place, the State shall have to abide by such law and issue direction within the frame work of law and in no case, direction can be issued in disregard to law framed by the Legislature. There are constraints on the power exercisable by the Court for causing interference in the election matters. At the same time, it has to be ensured that the Government acts in consonance with the law framed by the Legislature relating to conduct of election of the municipalities and does not violate the provisions of such law. At the same time, where the State Election Commission has stepped-in and issued directions in respect of elections to municipalities, it would also not be open for the Government to cause interference in the electoral matters and issue directions contrary to the provisions of law made by the Legislature. Issuance of such directions, contrary to law made by the State Legislature, even after Election Commission has assumed the power of superintendence and control over election, shall have to be construed as the interference by the State Government in the election which is imminent, although in strict sense of terms, the Notification for election has not been issued, as stipulated under form No.I appended to Maharashtra Municipalities (Direct election to the post of President) Rules, 2016.
::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 :::{7} wp1094116a.odt ("The Election Rules of 2016" for short).
7 In the instant matter, the petitioner, who is a resident of Vaijapur, Tq. Vijapur and held the office as councillor as well as the President in the past, is raising challenge to the communication issued by the State Government on 28.10.2016 to the State Election Commission, whereby the reservation for the post of President, which was prescribed by draw of lots conducted in consonance with the provisions of the Election Rules, 2016, in favour of "open women category", has been changed and the office of the President of the Municipal Council has been prescribed for "General category".
8 The last election to the Municipal council Vaijapur was held in December, 2014 and the elections to Municipalities are due in December, 2016. The State of Maharashtra has issued an ordinance No.IX of 2016 with a view to amend the Maharashtra Municipal Corporation Act and Maharashtra Municipalities, Nagar Panchayat and Industrial Township Act, 1965. By virtue of section 6 of the amending Act, Section 51A-1A has been inserted, providing for direct elections to the President. In section 52 of the Municipalities Act sub-section (2) has been inserted, providing that the term of the office of the President elected under sub-section (1) of section 51(1)(A) shall be five years and shall be co-terminus with the term of the council. The Election Rules of 2016 framed and published in the Official Gazette on 4.10.2016 also provide, apart from other matters relating to conduct of election of the President, for reservation of office of the President and procedure for allotment of reserved seats of different municipal councils.
::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 :::{8} wp1094116a.odt 9 It is the contention of the petitioner that in view of Rule 3 of the Election Rules of 2016, a draw of lots for fixing reservation of the offices of Presidents of the Municipal Councils in the State of Maharashtra were held on 5.10.2016. It is contended that total 233 posts in the State of Maharashtra were put to draw. Out of 233 posts, after prescribing reservation for reserved categories i.e. SC, ST and OBC, 119 posts remained. Out of such 119 posts, not less than 50% of the posts i.e. 65 are required to be kept reserved for open women category and 64 posts for open general category. Accordingly, the draw was conducted and so far as the post of President of the Municipal Council Vaijapur is concerned, it came to be reserved for open (women) category. Result of the draw was published in various news papers. A communication was also sent to the State Election Commission by the State Government, informing result of the draw and prescription of reservation for various categories. The State Government, however, informed to the State Election Commission on 28.10.2016 to the effect that the draw for prescribing reservation for the post of President was conducted under chairmanship of Minister of State - Urban Development Department on 5.10.2016 at Mantralaya, Mumbai and the list prescribing the reservation for the post of President for various categories has been forwarded to the State Election Commission under the covering letter dated 7.10.2016. It was thereafter noticed by the State Government that there is repetition of the reservation for the post of President of Vaijapur Municipal council in favour of open (women) category and as such, decision has been taken by the State Government to prescribe the post of President of Vaijapur ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {9} wp1094116a.odt Municipal council for open category instead of open (women) category.
10 The petitioner contends that the change, that has been brought about in the reservation prescribed for the post of President of Vaijapur Municipal Council, is violative of the provisions of the Rules framed by the State Government. It is further contended that, it was not open for the State Government to take such decision unilaterally, after results of the draw were declared on 5.10.2016 regarding prescription of the reservation for the post of President and much after the State Election Commission issued direction relating to conduct of election within contemplation of Rule 6 of the Election Rules, 2016. It is also contended that it was not open for the State Government to cause interference in the process of election which is imminent.
11 The writ petition was presented on 25.10.2016 and this Court, by order dated 27.10.2016, granted time and adjourned the matter by one week at the request of the State Government with liberty to the petitioner to move before the Vacation Judge. On 03.11.2016, when the matter was moved before the learned Vacation Judge, the Court granted leave to the petitioner to amend the petition and at the request of the Government, with a view to facilitate presentation of the reply, adjourned the matter to 8.11.2016. On the adjourned date i.e. 8.11.2016, when the matter was called out before the learned Vacation Judge, the Assistant Government Pleader, appearing for the State, again sought adjournment. It was pointed out by the petitioner that the election programme would be declared on 15.11.2016. The learned Vacation ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {10} wp1094116a.odt Judge, considering contentions of the petitioner and noticing the illegalities in the matter of prescription of reservation and undue interference by the State Government in the election process, directed the Collector not to declare the programme of the election for electing President of Municipal Council, Vaijapur. The matter has been placed before us on reopening of Courts after Vacation;
and we have heard learned Counsel appearing for respective parties.
12 An affidavit in reply has been presented on behalf of the State by the District Administrative Officer, Aurangabad. Respondent-State has questioned the locus standi of the petitioner to present the petition. It is contended that, since the post of President is prescribed for open category, the petitioner, who is a woman, can very well contest for the post of President from the open category. It is contended that the reservation policy cannot be used as a tool for choosing the opponent from any one category. It is the stand taken by the State Government that the office of the President of the Municipal Council must be reserved in accordance with the Maharashtra Municipal Councils, Nagar Panchayats (President Election) Rules, 1981 (for short, "Rules of 1981"). It is contended that the Office of the President of the Municipal Council shall be allotted by rotation to different Municipal Councils and Nagar Panchayats in the State in view of Rule 2-A(b)(ii)(b). It is contended that the policy of reservation has been introduced with a view to avoid reservation in perpetuity. The Office of the President, Municipal Council, Vaijapur was earlier prescribed in favour of open (women) category. It was a just decision of the State to allot the office of the President in favour of open ( category in ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {11} wp1094116a.odt view of prescription of rotation of seats. It is contended that the arguments advanced by the petitioner that the only mode prescribed for reservation of the seat of the President is by draw of lots and no other mode is permissible, for bringing about change or correction, is incorrect. It is contended that there is no rule governing the rectification of mistake. However, section 21 of the Maharashtra General Clauses Act, 1904 mandates that where a power to issue notifications, orders, rules or bylaws is conferred by a State Act, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition (if any) to add, to amend, vary or rescind any notification, orders, rules or bylaws so issued.
13 It is contended that since the office of President of Municipal Council, Vaijapur was prescribed for open (women) category, during the previous term and since there was repetition of reservation for the said category, taking into consideration provisions of Rules of 2016 and with the approval of the Government, change has been brought about in the prescription of reservation for the post of President of Municipal Council, Vaijapur from open (women) category to general category. It is further contended that after the draw of lots prescribing reservation in view of Rule 2-A(b)(ii)(b)(iii), since the Office of the President so reserved and allotted was not notified in the Official Gazette and the change is effected prior to such publication of the Notification in the Official Gazette, it was permissible for the State Government to step in and correct the mistake. It is contended that after rectification of the mistake, the reservation and allotment of the seat has been notified in the Official Gazette. It is contended on ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {12} wp1094116a.odt behalf of the State that in view of the bar contained in Article 243- ZG, it is impermissible for this Court to cause interference in the electoral matters.
14 Shri Dixit, learned Senior Counsel appearing for the intervener, has also reiterated the same defence and has also questioned the locus standi of the petitioner.
15 By virtue of section 6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships (Amended Ordinance), 2016 after section 51 of Municipal Councils Act, section 51A-1A is substituted which reads as under:-
51A-1A. (1) After the date of commencement of the Maharashtra Municipal Corporations and the Maharashtra Municipal Councils, Panchayats and Industrial Townships (Amendment) Ordinance, 2016, in respect of the general elections to the Council, subject to the provisions of section 51-1A, every Council shall have a President who shall be elected by the persons whose names are included in the municipal voters list prepared under section 11.
(2) Every person qualified to be elected as a Councillor under section 15 shall be qualified to be elected as a President at an election.
(3) Election of the President shall be held simultaneously with the general elections of the Council and the procedure regarding holding of elections to the Council shall, mutatis mutandis, apply to such election.
(4) If at an election, no President is elected, a fresh election shall be held to elect a President, and if there is a failure to elect a President at the fresh election, such vacancy may, notwithstanding anything ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {13} wp1094116a.odt contained in this Act, be filled by election by the elected Councillors from amongst themselves.
(5) Any person elected under sub-section ( 4) or (7) shall be deemed to be duly elected at an election under this section.
(6) If, in the election of the President, there is an equality of votes, the result of the election shall be decided by lots to be drawn by the State Election Commissioner or the officer appointed by him for the purpose.
(7) If, during the term of the elected Councillors, there is a vacancy in the office of the President due to any reason, the same procedure as provided in sub-
sections (1) to (6) shall apply and such President shall remain in office only for the remainder of the term, for which his predecessor would have remained in office but for such casual vacancy :
Provided that, if a vacancy occurs, which is within six months prior to the date on which the term of office of the elected Councillors expires, the same shall be filled in by election from amongst the elected Councillors.
(8 ) in case of a dispute regarding election of the President, the provisions of section 21 shall, mutatis mutandis, apply.
(9) The Collector shall convene first general meeting of the Council within twenty-five days from the date on which the name of the President and the elected Councillors is published in the Official Gazette after the general election of the Council and the President.
The nomination of the Councillors under clause (b) of sub-section (1) of section 9 shall be made in the prescribed manner in this meeting.
16 The term of the office of the President elected under sub-section 1 of section 51A-1A has been prescribed as five years ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {14} wp1094116a.odt and the same shall be co-terminus with the term of the municipal council in view of section 52(2) of the Act as incorporated by the amendment Ordinance. The Election Rules of 2016 have been framed in exercise of powers conferred under sub-section (2) of section 321 read with sub-section (1) and clauses (b), (c), (d), (e), (f),
(g), (h), (i), (j), (k), (l), (m), (n), (o), (p) and (q) of sub-section (2) of section 17 and section 51A-1A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Rule 2(d) defines "Directly Elected President" means the President who is elected under section 51A-1A. Rule 2(e) defines "election" to mean election of President under section 51A-1A. Rule 3 relates to Reservation of offices of President and the procedure for allotting the reserved seats of different Municipal Councils, which reads thus:
3. Reservation of Offices of President and procedure for allotting the reserved seats of different Municipal Councils -
(1) The State Government shall, by order published in the Official Gazette, reserve the Offices of the President of Municipal Councils in the State for candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women. While determining the number of offices to be so reserved:-
(i) the number of offices to be reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes shall bear; as nearly, as may be, the same proportion to the total number of offices to be filled in the State, as the population of the Scheduled Castes or Scheduled Tribes, as the case may be in the Municipal Councils of the State bears to the total population in the Municipal Councils of the State and such offices may be allotted by rotation to different Municipal ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {15} wp1094116a.odt Councils in the State Explanation :- While calculating the number of Offices, the fraction of one-half or more shall be counted as one-and the fraction of less than one-half, shall be ignored;
(ii) twenty-seven per cent of the offices shall be reserved for the candidates belonging to the Backward Class of citizens and such offices may be allotted by rotation to different Municipal Councils in the State;
(iii) not less than one-half of the total number of offices reserved under clauses (i) and (ii) for woman candidates belonging to the Scheduled Castes, Scheduled Tribes or as the case may be, Backward Class or Citizens; and
(iv) not less than one-half (including the number of offices reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the Backward Class of Citizens) of the total number of Offices to be filled in the State shall be reserved for women candidates; and such offices may be allotted by rotation to different Municipal Councils in the State. In determining such figure, a fraction shall be taken into consideration so as to ensure that not less than one-third of the total number of offices of Presidents are reserved for the above categories are reserved for women.
(2) The procedure for allotting reserved seats to different Municipal Councils shall be as follows:-
(i) While allotting the offices of the President, for persons belonging to the Scheduled Castes, Scheduled Tribes and the Backward d Class of citizen (including women belonging to the said categories) the offices of the Presidents, reserved for any of the said categories in the immediately preceding term, shall be excluded.::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 :::
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(ii) Subject to provisions of clause (i), -
(a) the reservation of Offices of Presidents for candidates belonging to the Scheduled Castes and Scheduled Tribes in the Municipal Councils shall be made with reference to the largest percentage of population of the said categories in the Municipal Councils to the total population of such Municipal Councils, in the descending order:
Provided that, in case where the name of any Municipal Council appears in both the categories that is to say, the Scheduled ig Castes and the Scheduled Tribes, the reservation of the Office of the President for such Municipal Council shall be decided on the basis of higher percentage of the population belonging to either of the said categories and in such case, the next Municipal Council, in that order shall be reserved for the category:
Provided also that in case where the percentage of both the categories is equal, the reservation of such offices shall be decided by drawing lots;
(b) offices reserved for Backward Class of citizens and women shall be allotted by drawing lots and offices may be allotted by rotation to different Municipal Councils in the State.
(iii) The offices of the Presidents so reserved and allotted shall be notified in the Official Gazette.
17 Rule 6 relates to Powers of State Election Commission to appoint and deploy the staff of Council which reads thus:-
::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 :::{17} wp1094116a.odt 6 Powers of state Election Commissioner to appoint and deploy the staff of Council.
The State Election Commissioner shall have the power to appoint or deploy the officers and members of the staff of Council for conduct of election and other matters relating thereto. Such officers and members of staff shall function under the superintendence, direction and control of the State Election Commissioner. "
18 Fixation of various stages of election is, as prescribed under Rule 7. Sub-rule (1) of Rule 7 provides that for the purpose of holding a general election, the State Election Commissioner or the officer authorized by the State Election Commission, shall, as occasion may require, by order in Form I appoint or re-appoint, dates, time and place for all or any of the stages of the election.
19 It is the admitted position that there are total 233 seats of the President of Municipal Councils for which the elections are conducted. In view of sub-rule (1)(i) of Rule 3 of the Election Rules of 2016, the number of offices to be reserved for the candidates belonging to SC and ST are prescribed as 31 and 10 respectively and further in view of sub-rule (ii) of Rule 3, twenty- seven per cent of the offices prescribed for backward classes of citizens are 63. Sub-rule (1) (iv) of Rule 3 prescribed that not less than one-half posts including the number of offices reserved for women belonging to SC and ST and backward classes of citizens out of the total number of offices to be filled in the State i.e. 65, shall be reserved for women candidates and such offices may be allotted by rotation to different municipal councils in the State. It is further prescribed that in determining such figure, a fraction shall ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {18} wp1094116a.odt be taken into consideration so as to ensure that not less than one-
third of the total number of offices of President reserved for the above categories are reserved for women.
20 In view of aforesaid Rules, 16 offices of the President are prescribed for women belonging to SC category out of total 31 offices for the aforesaid category whereas, five offices of the Presidents are prescribed for women belonging to ST category out of total 10 offices, whereas 31 offices of the President are prescribed for OBC women category out of total 63 offices. Out of total 233 offices of the President in the State, total 129 are prescribed for general category including women. There are 52 offices of the President prescribed for women belonging to reserved category i.e. women belonging to SC, ST or backward classes of citizens. Reservation for women out of total number of offices shall be not less than 50% including the reservation of offices of women belonging to reserved categories. Thus, the number of offices prescribed for women general category were 65, whereas 64 offices were prescribed for general category. The offices of President, reserved for backward classes of citizens and women are allotted by drawing lots in view of sub-rule 2(b) of Rule 3 of the Rules of 2016. During the draw of lots conducted on 5.10.2016, 65 offices of the President were prescribed for women belonging to open category, whereas 64 offices of the President were prescribed for open category.
21 The office of President, Municipal Council Vaijapur was allotted by drawing lots in favour of open women category. The State Government, however has intervened in the matter and ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {19} wp1094116a.odt communicated to the State Election Commission on 20.10.2016 that the Office of the President, Vaijapur Municipal Council shall be available for open category instead of open-women category. The decision has been taken by the State Government of its own after draw of lots as prescribed under sub rule (2)(b) of rule 3 of the Election Rules, 2016 was already conducted. Apart from deviation from the procedure, while changing the reservation, the decision is rendered in breach of sub-rule (1)(iv) of Rule 3 of the Rules of 2016 framed by the State. It is prescribed that not less than one-half of the total number of offices available in the State shall be reserved for women candidates. The total offices of the President available in the State are 233; whereas in view of prescription of sub-rule (1)(iv) of Rule 3, at least 117 offices ought to have been reserved for women category. The decision of the State Government in prescribing the Office of President, Municipal Council for open category instead of open - women category has led to curtailing one seat prescribed for woman category which makes the total seats available in the State for women category to 116 which is less than one half of the total number of offices to be filled in the State. The decision of taking away office of President of Vaijapur Municipal Council, out of reservation prescribed for open - women category and prescribing the said office for open category, has led to breach of sub-rule (1)(iv) of Rule 3 of the Rules of 2016 framed by the State Government.
22 It is contended by the petitioner that since a procedure has been prescribed for allotment of offices for backward classes of citizen and women by way of draw of lots, it was not permissible for the State Government to deviate from that procedure and ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {20} wp1094116a.odt prescribe the office of the President of Municipal Council, Vaijapur for open category instead of open (women) category after draw of lots. Any change, if at all that was required, shall have to be made in observance of the provisions of sub-rule (2)(b) of Rule 3 of the Rules, of 2016.
23 It is the contention of the respondents that Maharashtra Municipal Councils And Nagar Panchayats (President Election) Rules, 1981 shall apply and in view of rule 2(A)(b) (ii)(b) of the Rules, 1981, the offices of President reserved for Backward Class of citizens and women shall be allotted by drawing lots and offices may be allotted by rotation to different Municipal Councils. The contention of the respondents that Rules framed in the year 1981 shall apply for prescription of reservation to the office of the President, Municipal Councils is devoid of substance.
In this context, reliance is placed by the petitioner on the judgment in the matter of Randhirsingh s/o Govardhansingh Bhadoriya Vs State of Maharashtra, 2002 (4) Mah.L.J. 531. The issue, in that matter, was as to whether earlier arrangement of reservation, after promulgation of ordinance dated 7.9.2001 prescribing direct elections to the President of Municipal Council would survive so far as the reservation of the seats is concerned. The Court adopted a view that since the Legislature has power to bring ordinance which proposition is not disputable, the earlier arrangement in respect of prescription of reservation no longer holds good.
::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 :::{21} wp1094116a.odt 24 It must be noted that before issuance of the Ordinance 2016 providing for direct election to the post of President of the Municipal Council, the President of Municipal Council was elected from amongst the elected councillors of the Municipal Councils in view of section 51 of the Act. Section 51A-1A has been incorporated in the Municipal Councils Act by virtue of the Amended Ordinance of 2016. The rules, prescribing reservation of the office of the President have been framed on 4.10.2016. In view of sub-rule (d) of rule (2) of the Election Rules of 2016 "directly elected President"
means the President who is elected under section 51A-1A, whereas rule 2(e) of the rules provides that "election" means election as provided under section 51A-1A. In the instant matter, we are concerned with elections of President under section 51A-1A. As such the rules framed by the State Government on 4.10.2016 shall apply. At the relevant time, when the Rules of 1981 were framed, the election to the office of the President was prescribed from amongst the citizens directly. However, the provision prescribing for election of the President, directly from amongst the voters, was deleted and section 51 was substituted by amending Act 31 of 2006 providing that President of Municipal Council be elected by elected councillors from amongst themselves. Rules of 1981 are not framed for the purpose of electing the President under section 51A-1A which provision has been brought into existence only in 2016. The argument that the Rules of 1981 would apply is thus devoid of any merit. Even otherwise, nothing in the Rules of 1981 shall support the action of the State Government in changing the reservation in respect of office of the President of Vaijapur Municipal Council.
25 It is further contended by the respondents that there is ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {22} wp1094116a.odt no provision in the Rules of 2016 for rectification of the error and as such the provisions of section 21 of the Maharashtra General Clauses Act, 1904 have been invoked which provides that where a power to issue notifications, orders, rules or bylaws is conferred by State Act, then that power includes a power exercisable in the like manner and subject to the like sanction and condition (if any) to add, amend, vary or rescind any notification, orders, rules or bylaws so issued. It must be emphasized that even power exercisable by taking recourse to clause 21 of the Maharashtra General Clauses Act shall be exercised in the like manner and subject to the like sanction and condition (if any) to add, amend, vary or rescind any notification, orders, rules or bylaws so issued 26 In the instant matter, a procedure has been prescribed for reserving the office of the President in favour of woman category i.e. by draw of lots. If at all any change is to be made, the procedure prescribed under the relevant rules mandating to take recourse of draw of lots must be observed. It also needs to be noted that by virtue of the State action of taking away reservation provided for General (women) category provided for the office of the President of Vaijapur Municipal Council, the State has provided less number of offices i.e. less than 50% in favour of woman category thereby committing breach of rule 3(iv) of the Election Rules of 2016.
27 It is further contended that since the office of the President, Municipal Council Vaijapur was prescribed for women general category, during the preceding term i.e. from 2014 to 2016, in view of prescription under the Rules, in respect of allotment of ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {23} wp1094116a.odt office by rotation, the change has been brought about and the office of the President of the Municipal Council Vaijapur has been prescribed for open category. It is also contended that while drawing lots for open - women category, it was necessary to exclude the reservation which was prescribed for open - women category during the preceding term. It is recorded in the affidavit in reply presented by the respondents that out of total number of Municipal Councils available for open category, there were 13 municipal councils whose offices of President were reserved for women category during the preceding term. Therefore, the chits/slips of those 13 Municipal Councils were required to be kept aside, while drawing lots in order to avoid repetition of reservation. This procedure is carried out during draw of lots itself. It is further stated that instead of 13 chits, 11 chits were inadvertently kept aside during draw of lots. Two municipal councils, for which chits were not kept aside inadvertently, were Vaijapur Municipal Council and Pandharpur Municipal Council.
28 The aforesaid contention of the respondent is clearly in breach of the procedure prescribed for draw of lots under rule 3(2)
(i) of the Rules of 2016. Rule 3(2)(i) provides thus:
3 Reservation of offices of President and procedure for allotting the reserved seats of different Municipal Councils-
(2) The procedure for allotting reserved seats to different Municipal Councils shall be as follows:
(ii) While allotting the offices of the President, for persons belonging to the Scheduled Castes, Scheduled Tribes and the Backward Class of citizens (including women belonging to the said categories), ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {24} wp1094116a.odt the offices of the Presidents reserved for any of the said categories in immediately preceding term, shall be excluded.
The exclusion that is directed under the Rules, in the event of prescription of reservation during immediately preceding year in favour of Scheduled Castes, Scheduled Tribes and backward classes of citizens only, does not apply to open women category. The exclusion at the stage of draw of lots while allotting the office is prescribed in the event of repetition of reservation during immediately preceding term, only as regards SC, ST and backward classes of citizens including women belonging to such categories and not to any other categories including open- women general category. The procedure that has been adopted for excluding 11 municipal councils wherein the office of the President was prescribed for open women category during the preceding term is itself violative of the procedure prescribed under rule 3(2)(i) of the Rules of 2016. It was not open for the State Government to exclude the 11 Municipal Councils, wherein the offices of the President, in the preceding term, were prescribed for open women category and as such the whole process of allotment of seats by draw of lots is liable to be vitiated.
29 Another aspect which is required to be taken into consideration is that change is effected after the draw of lots was conducted for prescribing reserved seats for SC, ST, OBC and women category on 5.10.2016. The result of draw of lots was published in the news paper on the next date. The State Election Commission was communicated in respect of draw of lots on 7.10.2016. The list of reserved offices of the President was also sent ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {25} wp1094116a.odt to the State Election Commission along with communication dated 7.10.2016 by the State Government. The State Election Commission acting upon the communication of the State Government in respect of reservation of seats, issued directions within contemplation of Rule 6 of the Rules of 2016.
30 Rule 6 provides that the State Election Commission shall have the power to appoint or deploy the officers and members of the staff of the council for conducting of election and matters relating thereto. Such officers and members shall function under the superintendence, directions and control of the State Election Commission. The State Election Commission issued an order on 7.10.2016 and issued detail instructions within contemplation of Rule 6 of the Rules. The State Election Commission also prescribed the dates for declaration of the programme of election by the Collector and the dates in respect of acceptance of nomination papers as well as the dates for recording of votes. It is thus clear that the State Election Commission had stepped in and taken over the functions of holding elections. It was, therefore, impermissible for the state Government to take steps in respect of changing the reservation of the office of the President of the Municipal Council Vaijapur and inform accordingly to the Election Commission on 20.8.2016 much after issuance of instructions by the State Election Commission in respect of holding of elections to the President of the Municipal Councils in the State on 17.10.2016. Issuance of communication in respect of changing reservation by the State, issued on 20.10.2016 itself amounts to interference on the part of the State Government in the matter of elections under the control of State Election Commission and that too after ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {26} wp1094116a.odt issuance of instructions under rule 6 of the Rules of 2016 and when the elections were imminent and various dates were prescribed for conducting the process of election by the State Election Commission. As has been observed by the Supreme Court, it is permissible for nobody including the State Government to cause interference in the on-going process of elections. In the instant matter, the interference by the State Government is not with a view to correct the illegality. However, interference itself has an effect of committing breach of the various provisions of the Election Rules, 2016 governing the elections to the post of President.
31 While justifying the action of changing the reservation prescribed while drawing the lots, it is contended that it was open for the State Government to correct the mistake until the offices of the President reserved and allotted are notified in the Government Gazette. It is pointed out by the special counsel appearing for the State that sub-rule 2(b)(iii) of Rule 3 prescribes that the offices of the President so reserved and allotted, shall be notified in the Official Gazette. It is informed that on 20.10.2016, the communication was issued to the State Election Commission, informing the change of reservation in respect of Office of the President of Municipal Council Vaijapur. It may be true that until such communication is made, the compliance of requirement in respect of publication of reservation of posts of President after draw of lots in the Official Gazette was not made. However, since the result of draw and list of the offices reserved for various categories was also communicated to the State Election Commission on 7.10.2016, the State Election Commission exercised ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:06 ::: {27} wp1094116a.odt the powers under Rule 6 and issued an order deploying the officers and members of the staff and also prescribed various dates for conducting process of election including the dates for declaration of programme, acceptance of nomination papers and recording of votes. After the State Election Commission issued orders under Rule 6 of the Rules of 2016, in our view, it was not permissible for the State Government to effect any change in the matter of reservation of the offices and that too contrary to the provisions of Rule 3 of the Election Rules of 2016.
32It is vehemently contended by the special counsel appointed for the State Government that in view of article 243-ZG, there is a bar for interference in the electoral matters and this Court shall refrain from issuing any directions. Article 243-ZG reads thus:-
243ZG. 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 243ZA shall not be called in question in any court;
(b) no election to any Municipality 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.::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 :::
{28} wp1094116a.odt 33 Relying on judgment in the matter of State of U.P. and others vs Pradhan Sangh Kshetra Samiti and others, AIR 1995 SC 1512, it is contended that even challenge to the orders relating to delimitation and reservation of seats cannot be entertained after the process of election is set in motion. Para 46 of the Judgment reads thus:-
"46 What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-0 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 & Ors. [(1967) 1 SCR 400]. 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 sections 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 ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {29} wp1094116a.odt because if the orders made under sections 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 9 of the Delimitation Commission Act and published under Section 10 [1] of that Act is not part of an Act of Parliament, its effect is the same. Section 277 10 [4] of that Act puts such an order in the same position as a law made by the Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-0 in place of Article 327 and sections 2 [kk], 11-F and 12-BB of the Act in place of Sections 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 or 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 31st August, 1994."
34 Our attention is invited to a judgment in the matter of Anugrah Narain Singh and anr. Versus State of U.P. and others (1996) 6 SCC 303, wherein the decision in the matter of Meghraj Kothari which is referred to in the matter of State of U.P. and others versus Pradhan Sangh Kshetra Samiti is discussed and elaborated in para No.25 of the judgment in detail which is ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {30} wp1094116a.odt reproduced thus:
"In this connection, it may be necessary to mention that there is one feature to be found in the Delimitation Commission Act, 1962 which is absent in the U.P. Act Section 10 of the Act of 1962 provided that the Commission shall cause each of its order made under Sections 8 and 9 to be published in the Gazette of India and in the official Gazettes of the State concerned. Upon publication in the Gazette of India every such order shall have the force of law and shall not be called in question in any Court. Because of these specific provisions of the Delimitation Commission Act, 1962 in the case of Meghraj Kothari v. Delimitation Commission and others, (AIR 1967 SC 669), this Court held that notification of orders passed under Sections 8 and 9 of that Act had the force of law and therefore, could not be assailed in any court of law because of the bar imposed by Article 329. The U.P. Act of 1959, however, merely provides that the draft order of delimitation of municipal areas shall be published in the official Gazette for objections for a period of not less than seven days. The draft order may be altered or modified after hearing the objections filed, if any. Thereupon, it shall become final. It does not lay down that such an order upon reaching finality will have the force of law and shall not be questioned in any court of law. For this reason, it may not be possible to say that such an order made under Section 32 of the U.P. Act has the force of law and is beyond challenge by virtue of Article 243-ZG. But any such challenge should be made soon after the final order is published. The Election Court constituted under Section 61 of the U.P. Act will not be competent to entertain such an objection. In other words, this ground cannot be said to be comprised in sub-sections (iv) of ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {31} wp1094116a.odt clause (d) Section 71 of the U.P. Act. In the vary nature of things, the Election Court cannot entertain or give any relief on this score. The validity of a final order published under Section 33 of the U.P. Act is beyond the ken of Election Court constituted under Section 61 of the said Act. "
35 It is thus clear that the Notification of the Orders passed under sections 8 and 9 of the Delimitation Commission Act 1962 which was a matter for consideration in Meghraj Kothari's matter could not have been assailed since it has a force of law. So far as the U.P.Act of 1959 is concerned, the draft order of De- limitation of municipal areas was required to be published in the Official Gazette and the same can be altered or modified after hearing objections filed, if any. The U.P. Act of 1959 does not provide that upon reaching finality, it will have a force of law and shall not be question in any Court of law. In the instant matter also, the orders relating to reservation of the offices, does not have force of law, nor there is such prescription made under the Election Rules of 2016. The issue in the matter of State of U.P. Vs Pradhan Sangh Kshetra Samiti and others is thus distinguishable.
36 Learned Counsel appearing for the petitioner has invited our attention to the judgment in the matter of K. Venkatachalam versus A. Swamickan AIR 1999 SC 1723 to contend that the High Court can exercise jurisdiction under Article 226 and declare that the appellant is not qualified to be member of Legislative Assembly. As has been held in the aforesaid judgment, it is thus contended that in the case, wherein the illegalities are ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {32} wp1094116a.odt palpable, interference is permissible. It shall be borne in mind that in the instant matter, it is the State Government which has interfered and changed the reservation prescribed for office of the President of Vaijapur Municipal Council after the draw of lots. The State Government is instrumental in creating impediments in the process of election. After it was brought to the notice of the High Court, the learned Single Judge of this Court, during vacation, during admission hearing, mandated the Collector, not to issue Notification for the election. Thus the Notification for election has not been issued by the Collector and the actual process of election has not been set in motion.
37 It is also contended by the petitioner placing reliance on the Supreme Court judgment in the matter of Babaji Kondaji Garad versus Nasik Merchants Co-operative Bank Ltd AIR 1984 SC 192 that when the statute requires certain things to be done in certain manner, it must be done in that manner alone, unless a contrary indication is found in the statute. It is contended that the change in reservation prescribed after draw of lots at the instance of the State Government is in breach of the Rules and while effecting change, the procedure prescribed under the Rules has been given go by which is contrary to the principle laid down by the Supreme Court in the aforesaid matter.
38 Learned Special Counsel appearing for the State Government as well as intervener have contended that the petitioner does not have locus standi to present the petition. It is contended that since the office of the President is prescribed for ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {33} wp1094116a.odt open category, petitioner can very well contest the election and there is no impediment for her and no prejudice as such is caused by prescribing change in reservation. Reliance is placed on the judgment in the matter of Jasbhai Motibhai Desai Versus Haji Bashir Ahmed and others 1976 1 SCC 671. In paragraphs No.36 to 38 of the Judgment, it is observed thus:-
"36 It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
37 The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {34} wp1094116a.odt category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be "persons aggrieved.
38 To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something" ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of the words "persons aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? Or is it a statute dealing with private rights of particular Individuals."
39 It is contended that the petitioner cannot be considered as a person aggrieved since it is open for her to contest the elections. It is further contended that the petitioner cannot be permitted to choose her opponent by insisting that the office of the ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {35} wp1094116a.odt President shall be earmarked for women category. In the instant matter, the petitioner is a woman member and the Office of President was prescribed by draw of lots conducted under rule 3 of the Rules of 2016 for women category. The object behind prescribing reservation not less than 50% of the total offices in the local authorities in favour of the women is to ensure that the significant part of the population i.e. women shall get adequate representation in the local bodies. It is a matter of common knowledge that during past several decades, the women members seldom got representation over local bodies commensurate with population of women in the society and as such a special provision was required to be made to ensure adequate representation for women members. The illegality, that has been brought to the notice in the instant matter, defeats the very purpose for which prescription has been made under the constitutional provision as well as under the statute requiring reservation of seats for women members. It is, therefore, not prudent to contend that the petitioner, who is a woman member does not have locus standi to insist that reservation in favour of woman category shall be maintained and shall not be disturbed, although change, that has been brought about is in contravention of rules. Arguments advanced by the learned special counsel as well as the counsel for intervenor questioning the locus standi of the petitioner deserve to be rejected.
40 Learned Counsel appearing for the State Election Commission contends that the term of office of the outgoing President comes to an end in December, 2016. For completing the process of election from the date of issuance of Notification by the ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {36} wp1094116a.odt District Collector till declaration of results approximately 45 days time would be required. Therefore, directions are solicited in respect of intervening period between 28.12.2016 i.e. the last date of office of the outgoing President until assumption of Office by the newly elected President.
41 It is contended by the learned Counsel appearing for the State Election Commission that in view of the judgment of the Supreme Court in the matter of State of Maharashtra & others Vs. Jalgaon Municipal Council & others, (2003) 9 SCC 731, an appropriate care can be taken by issuing directions in respect of hiatus occurring as a result of expiration of period of outgoing President on 28.12.2016 and installation of the President in office by virtue of the elections, those would be held immediately on disposal of the instant petition, by directing appointment of an Administrator for a short duration. It would be open for the State Government to appoint an Administrator for intervening period between 28.12.2016 i.e. the last date in office of the outgoing President till assumption of newly elected President.
42 For the reasons recorded above, writ petition deserves to be allowed and same is accordingly allowed. The orders issued and communicated to the State Election Commission by respondent No.1 State on 20.10.2016, prescribing the Office of the President of Vaijapur Municipal Council for open category instead of open - women category, are quashed. Reservation prescribed in respect of office of the President of Vaijapur Municipal Council, by draw of lots and communicated to the State Election Commission by respondent No.1 State on 7.10.2016, shall be maintained and ::: Uploaded on - 02/12/2016 ::: Downloaded on - 03/12/2016 01:05:07 ::: {37} wp1094116a.odt further process of election shall be undertaken forthwith.
43 Rule is accordingly made absolute.
44 There shall be no order as to costs.
45 Civil Application No.14663 of 2016 does not survive and stand disposed of.
JUDGE
(SANGITRAO S. PATIL) (R.M.BORDE)
JUDGE
vbd
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