Bombay High Court
Pushpa Prakash Kalpande vs Collector, Amravati And Others on 10 December, 1997
Equivalent citations: 1998(4)BOMCR443, 1998(1)MHLJ323
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER A.V. Savant, J.
1. Heard all the learned Counsel.
2. The short point which arises for consideration in this petition is whether the third respondent who has been elected as a member of Gram Panchayat Jawala (Bk.) in Tahsil Anjagoan Surji from the seat reserved for woman O.B.C. is inelegible to contest the electron for the Sarpanch of the said Gram Panchayat, which post, as per the roaster settled in accordance with the 1964 Rules for Election of the Sarpanch and Upsarpanch under the Bombay Village Panchayats Act, has been reserved for the woman General category. A perusal of the notice at Annexure C dated 21st August, 1995 shows that in accordance with the said roaster, the post of Sarpanch of Jawala (Bk.) Gram Panchayat (item No.37 in notice at Annexure C) has been reserved for "Woman General Category". The petitioner is undoubtedly elected as a member of the Gram Panchayat from the seat reserved for General category (Woman). Relying upon the decision of the Apex Court in Saraswati Devi v. Shanti Devi, , it was sought to be contended that in order to be eligible to contest the election for the post of Sarpanch reserved for woman belonging to General category, it was necessary for the third respondent to have been initially elected as a member of the Gram Panchayat from such category alone, namely, to seat reserved for woman General category. In as much as the third respondent has been elected to a seat reserved for O.B.C. (Woman), the petitioner contended that she was ineligible to contest for the post of Sarpanch reserved for woman General category.
3. The point is no longer res-integra in view of the subsequent larger Bench decision of the Apex Court in Kasambhai P. Ghanchi v. Chandubhai Rajput and others, Civil Appeal No. 8279 of 1997 arising out of S.L.P. (Civil) No. 17369 of 1997) decided on 25th November, 1997 reported in 1998(1) Mh.L.J. 1 (S.C.). The Apex Court has considered its earlier judgment in Saraswati Devi's case and has categorically held that the conclusions reached in Saraswati Devi's case did not flow from the language of the relevant provisions and was not consistent with the concept of reservation. It has, therefore, been declared that Saraswati Devi's case did not lay down the correct law. Apex Court has now categorically stated that :
"Just as all members of the Municipality, irrespective of the fact whether they had been elected to a reserved seat or not, are eligible for election to the post of the President when it falls in the General category, similarly when as per the roster the President is to be one who, say, belongs to the category of Scheduled Caste then all members of the Municipality who are scheduled caste, irrespective of the seat to which they had been elected, would be eligible to stand for election."
It has further been observed as under :
"Neither the Act nor the rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the President of the Municipality."
4. In our view, the above ratio of the Apex Court decision, though under the Gujarat Municipal Act, 1963 clearly applies to the facts of the present case. There is nothing in the provisions of the Bombay Village Panchayats Act, 1958 or the relevant rules of election to the post of Sarpanch and Upsarpanch to suggest that in order to be eligible to contest the election for the post of Sarpanch which has been reserved for woman General category, it is necessary for the candidate to have been elected to the Gram Panchayat only from a seat reserved for woman general category and further that if a woman belonging to O.B.C. has been elected as a member of the Gram Panchayat, she would be ineligible to contest such an election. In the absence of any such specific prohibition, against the third respondent, we do not think that the petitioner can prevent the third respondent from contesting the election to the post of Sarpanch of Jawala (Bk.) Gram Panchayat which post has been reserved for a woman in the general category.
5. Shri Lambat has sought to place reliance on a letter issued by the Deputy Secretary of the Government of Maharashtra on 19th May, 1997 addressed to all the Collectors in the State. It is true that in the concluding para of the said letter it is mentioned that if the post of the Sarpanch of the Gram Panchayat has been reserved for a particular category, then it was necessary that, to be eligible to contest for the said post of Sarpanch, the candidate ought to have been elected to the Gram Panchayat from that category alone. However, it is of some significance to note that the Returning Officer has now filed an affidavit before us and along with the affidavit, another circular dated 6th November, 1997 has been annexed. It is also signed by the same Deputy Secretary who has issued the earlier circular dated 19th May, 1997. On point No. 4, on which an explanation was sought, the State Government has now made it clear even before the Apex Court judgment was delivered in Kasambhai's case on 25th November, 1997 that, if the post of Sarpanch of a Gram Panchayat was reserved for woman general category, a woman belonging to reserved category who was elected to a seat for reserved category woman would be eligible to contest the election for the post of Sarpanch. However, independently of the conflicting views expressed in the two letters addressed by the same Deputy Secretary, on a plain reading of the notice Annexure C settling the roster there is nothing to suggest that the third respondent is ineligible to contest the election for the post of Sarpanch of the Gram Panchayat which post has been reserved for woman belonging to general category, namely, on the ground of the third respondent being elected to a seat reserved for O.B.C. woman.
6. There is thus no merit in the petition. The writ petition is, therefore, liable to be rejected. Rule is accordingly discharged with no order as to costs, interim order to stand vacated forthwith.
7. Petition dismissed.