Madhya Pradesh High Court
Jayesh Gurnani vs Urban Administration And Development ... on 17 June, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1 W.P. No.12560/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 17th OF JUNE, 2022
WRIT PETITION No. 12560 of 2022
Between:-
1. JAYESH GURNANI S/O MR. RAVI
GURNANI , AGED ABOUT 22 YEARS,
OCCUPATION: STUDENT 11/5, PARSI
MOHALLA, CHHAWNI, INDORE
(MADHYA PRADESH)
2. DILIP KAUSHAL S/O LATE
GULABCHANDRA KAUSHAL , AGED
ABOUT 57 YEARS, OCCUPATION:
SOCIAL WORKER 11/ PARSI MOHALLA,
CHHAWNI (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI VIBHOR KHANDELWAL, ADVOCATE)
AND
URBAN ADMINISTRATION AND
DEVELOPMENT DEPARTMENT
THROUGH PRINCIPAL SECRETARY
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI UMESH GAJANKUSH, LEARNED ADDITIONAL
ADVOCATE GENERAL FOR THE STATE AND SHRI PANKAJ
PORWAL AND SHRI KAMAL AIREN, LEARNED COUNSEL
FOR THE INTERVENOR )
2 W.P. No.12560/2022
This petition coming on for admission/orders this day, the
court passed the following:
ORDER
This petition has been filed by the petitioners under Article 226 of the Constitution of India seeking the following relief:-
"7.1 That, the instant writ petition may kindly be allowed and impugned circular dated 20/05/2022 issued by the respondent may kindly be quashed;
7.2 That, all the consequential proceeding and process initiated in pursuance to the impugned circular dated 20/05/2022 issued by the respondent may kindly be quashed.
7.3. That, the respondent may kindly be directed to conduct the process of reservation of wards of urban bodies for SC and ST by strictly following the process of 'rotation' in letter and spirit as prescribed under Article 243-T of the Constitution of India.
7.4 That, the cost of this petition may kindly be awarded to the petitioners and nay other order which this Hon'ble Court may consider appropriate in the present facts and circumstances of this case, may also be granted in favour of the petitioners. '' Admittedly, in the earlier round of litigation, WP No.12517/2021 was filed by the petitioners herein assailing the non-
compliance of the provisions of Article 243-T of the Constitution of India and seeking rotation of reservation of seats as provided in the 3 W.P. No.12560/2022 said article and this Court, vide its final order dated 10/01/2022, while allowing the writ petition directed the respondents as hereunder:-
"32. On the aforementioned discussion, in the light of the constitutional mandate, and the State enactments, viz. Municipal Corporation Act and the Rules of 1994, as also the decision rendered by the Supreme Court in the case of K. Krishna Murthy (Dr.) and others v. Union of India and another (supra), this Court is of the considered opinion that the impugned gazette notification regarding the allotment of seat cannot be sustained in the eyes of law; and accordingly, the same is hereby quashed. However, with liberty reserved to the State to formulate such policy of reservation of rotation of seats as provided under Article 243-T of the Constitution of India and issue a fresh publication for conduct of election. Writ Petition No.12517/2021 stands allowed."
However, in the subsequent chain of events, the Hon'ble Supreme Court, on 10/05/2022 in Writ Petition (Civil) No.278/2022 in the case of Suresh Mahajan Vs. State of M.P. and another has given series of directions to the State Government to conduct the election of the local bodies. The relevant paras of the same read as under:-
"5. The elections have not been held assumedly for the same reason as in the case of State of Maharashtra, namely, the State has still not been able to complete the triple test formalities as predicated in the decision of this Court in Vikas Kishanrao Gawali Vs. State of Maharashtra1. As a result of which, reservation for Other Backward Classes 4 W.P. No.12560/2022 (OBC) category cannot be provisioned by the State Election Commission. This has happened despite the peremptory directions given by this Court vide successive orders, including dated 03.03.2022. This Court had made it amply clear that conduct of elections to install the newly elected body in the concerned local self-government cannot brook delay, owing to the Constitutional mandate exposited in Article 243-E and 243-U including the provisions in the concerned State Legislation in that regard.
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28. We were also informed by the learned counsel appearing for the Madhya Pradesh State Election Commission during the course of arguments that some writ petitions are pending before the High Court in which interim orders have been passed and that may come in the way of the State Election Commission to notify the election programme. In that regard, we make it clear and also direct that the State Election Commission must abide by the directions and observations in this order uninfluenced by any order of the High Court or the Civil Court on the subject of elections of the concerned local self-government, as the case may be. If any order passed or to be passed hereafter by the High Court or the Civil Court in the State of Madhya Pradesh, is in conflict with the directions given by this Court, the same shall be deemed to have been superseded in terms of this order and not to be acted upon without the prior permission of this Court."
This order has led the State Government to issue the election programme on 01/06/2022, however, prior to that, the State Government has also issued the circular on 20/05/2022, which is under challenge in this writ petition, directing the authorities to initiate the process of reservation of wards for urban bodies situated 5 W.P. No.12560/2022 within the State of Madhya Pradesh and conclude the same before 24/05/2022 and in the aforesaid circular, it was also directed in Clause 4 that reservations of the seats shall be as it was earlier.
Learned counsel for the petitioners has submitted that the aforesaid circular dated 20/05/2022 runs contrary to, not only the order passed by this Court in WP No.12517/2021, but also against the spirit of Article 243-T of the Constitution. It is further submitted that the Supreme Court in WP No.278/2022 in the case of Suresh Mahajan (Supra) has not directed the State Government not to follow the constitution mandate of Article 243T and as such the order passed by this Court in WP No.12517/2021 which is certainly not in conflict with the order of the Supreme Court is binding on the State Govt. Thus, it is prayed that the respondents be directed to comply with the mandate of Art.243T of the Constitution as earlier directed by this court.
Learned counsel for the State has opposed the prayer and it is submitted that as directed by the Supreme Court in para 28, in the case of Suresh Mahajan (supra), the State Government has carried out the election process and has issued the circular dated 20/05/2022 6 W.P. No.12560/2022 and subsequently, the election programme on 01/06/2022, and thus, no illegality has been committed by the State Government as the order passed by the Supreme Court is binding on all the parties concerned including this Court.
On due consideration of submissions and on perusal of the record, it is apparent that the order passed by this Court in WP No.12517/2021 dated 10/01/2022 has attained the finality and in WANo.123/2022, preferred by the State Government against the said order, there is no stay in operation. In such circumstances, in the considered opinion of this Court, it was the duty of the State to comply with the order passed by this Court in WP No.12517/2021, however, the aforesaid order has been conveniently pre-empted by the State Government under the cover of the order passed by the Hon'ble Supreme Court, as this Court is of the view that the State Government had sufficient time to implement the order passed by this Court on 10/01/2022, in WP No.12517/2021 but it appears that no action was taken by the State Government to comply with the aforesaid order except filing the writ appeal against the same in which also no efforts appear to have taken by them to obtain any stay 7 W.P. No.12560/2022 order. Be that as it may, considering the observations made by the Hon'ble Supreme Court in para 28 in the case of Suresh Mahajan (supra), this Court cannot help the petitioners in their efforts to implement the order passed by this court in W.P.No.12517/21. Since the last date of submissions of forms is 18/06/2022, nothing survives to be decided by this Court at this juncture or thereafter in the aforesaid election process.
In view of the same, the writ petition is hereby dismissed in the light of the observations made by the Hon'ble Supreme Court in the case of Suresh Mahajan (supra). However, the petitioners shall be free to participate in the election process in accordance with law.
(Subodh Abhyankar) Judge krjoshi Digitally signed by KHEMRAJ JOSHI Date: 2022.06.17 19:04:39 +05'30'