Bombay High Court
Shri Raju S/O Fakirba Muley vs Divisional Commissioner, Amravati ... on 23 January, 2017
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6987 OF 2016
Shri Raju s/o Fakirba Muley,
aged about 40 years,
occupation - Agriculturist,
r/o Birsinghpur, Tq. and
District - Buldhana. ... PETITIONER
Versus
1. The Divisional Commissioner,
Amravati Division, Amravati.
2. The Collector, Buldhana. ... RESPONDENTS
Shri A.S. Kilor, Advocate for the petitioner.
Shri P. Tembhare, AGP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
JANUARY 23, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Rule. Rule is made returnable forthwith and heard finally with the consent of Shri Kilor, learned counsel for the petitioner and Shri Tembhare, learned AGP for the respondents.
2. By placing reliance upon the earlier reservations in ::: Uploaded on - 27/01/2017 ::: Downloaded on - 28/01/2017 00:39:11 ::: wp6987.16 2 Masrul Constituency, Shri Kilor, learned counsel submits that fastening of reservation of Other Backward Class (Woman) for 2017 Elections is unsustainable. According to him, in other three constituencies viz., Dongaon, Pimpalgaon Kale, Chandurbiswa, the reservation for 'Woman Open' was only on one occasion in last four Elections and hence by rotation, the said reservation ought to have been shifted and shown against any one of these constituencies.
3. Shri Kilor, learned counsel places reliance upon the instructions issued on 18.08.2016 by the State Election Commission, particularly Instruction No. 5.1.
4. The learned Assistant Government Pleader relies upon Rule 6 of the Maharashtra Zilla Parishad and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996 (hereinafter referred to as the Rules). He submits that Rule 6 speaks of only one election i.e. previous election and accordingly the principle of rotation has been rightly followed.
::: Uploaded on - 27/01/2017 ::: Downloaded on - 28/01/2017 00:39:11 ::: wp6987.16 35. With the assistance of learned counsel, we have perused the papers. The fact that at Dongaon, Pimpalgaon Kale and Chandurbiswa, reservation for woman has been provided only once in previous three general elections is apparent. At Masrul, it was provided for in 2002, 2007 and has been again fastened now in 2017. In immediate preceding election of 2012, Masrul Seat was reserved for Scheduled Tribe.
6. Instruction No. 5.1 of Election Commission stipulates consideration of previous three elections and reservations therein for working of rotation in 2017 Elections.
Rule 6 mentioned supra states that while providing the reservation for women, the Electoral division where seats were reserved for such caste, Tribes or Class need to be put up for drawing of lots initially. At subsequent General Elections, the Electoral divisions where such seats were already reserved for women are required to be excluded. No reservation can be affixed on it till that reservation attaches itself on all remaining electoral divisions.
::: Uploaded on - 27/01/2017 ::: Downloaded on - 28/01/2017 00:39:11 ::: wp6987.16 47. It is not in dispute that while prescribing reservation for women, there is further sub-classification or sub-reservation. The reservation inter se has to be for women belonging to SC, ST or as the case may be for women belonging to Backward class of citizen. Thus, Rule 6.1 of the Rules deals with the modality of prescribing reservation for women specifically.
8. Instruction No. 5.1 of issued on 18.08.2016 by the State Election Commission is a general guideline to be adhered to and it does not specifically deal with women. Rule 6 is a statutory provision on the manner of allotment and rotation of seats reserved for women. Thus, Rule 6 which contains a specific provision, therefore, becomes a special provision which has to prevail. Not only this, the instructions issued by the Election Commission on 18.08.2016 cannot derogate from the mandate of a statutory provision like Rule 6 of the Rules. Said instruction is subordinate to mandate and Scheme of Rule 6.
9. The data of reservation placed on record by the ::: Uploaded on - 27/01/2017 ::: Downloaded on - 28/01/2017 00:39:11 ::: wp6987.16 5 petitioner shows that at Dongaon, Pimpalgaon Kale and Chandurbiswa, in last election only there was reservation for women. Hence, going by mandate of Rule 6 of the Rules, these three constituencies cannot be subjected to reservation for women again. At Masrul in last election i.e. in 2012, there was reservation for Scheduled Caste. Thus, it is the only constituency where then there was no reservation for woman.
10. Taking overall view of the matter, in these facts, we find nothing wrong with fastening of reservation for Backward Class Women at Masrul. No case is made out warranting intervention in writ jurisdiction.
11. Writ Petition is dismissed. Rule discharged.
However, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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