Bombay High Court
Mr. Sadashiv S/O Shivaji Dhenge vs The State Of Maharashtra, Thr. ... on 8 February, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:1573-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2105 OF 2023
Mr. Sadashiv s/o Shivaji Dhenge,
Aged 41 years, Occupation - Agriculturist,
R/o Hardul, Tahsil - Mohadi,
District Bhandara, Maharashtra-441909. .... PETITIONER
VERSUS
1) The State of Maharashtra,
through its Secretary, the Department of Cooperation,
Marketing & Textile, Mantralaya, Mumbai - 400032.
2) The State of Maharashtra,
through its Secretary, Rural Development Department,
Mantralaya, Mumbai - 400032.
3) The State Cooperative Election Authority, Maharashtra
State, having its office at Old Central Building
Ground Floor, Pune - 411 003. (Maharashtra State).
4) The State Election Commission, Maharashtra State,
having its office at New Administrative Building,
Hutatma Rajguru Chowk, Madam Cama Road,
Mumbai - 400032.
5) District Returning Officer (APMC) And District
Deputy Registrar, Cooperative Societies, Bhandara,
having an office at the Land Development Bank,
2nd Floor, Infront of Chhatrapati Shivaji Maharaj
Sports Complex, Bhandara, Tahsil & District
Bhandara (Maharashtra State).
6) Agricultural Produce Market Committee (APMC),
Tumsar, through its Secretary having office at Tumsar,
Tahsil - Tumsar, District Bhandara (Maharashtra State) ..... RESPONDENTS
______________________________________________________________
Mr. Harish Dangre, Counsel for the petitioner.
Mr. N.R. Patil, A.G.P. for respondent Nos. 1, 2 and 5.
Mr. S.S. Ghate, Counsel for respondent No.3.
Mr. J.B. Kasat, Counsel for respondent No.4.
Mr. S.S. Paliwal, Counsel for respondent No.6.
______________________________________________________________
CORAM : NITIN W. SAMBRE AND ABHAY J. MANTRI, JJ.
DATE ON WHICH THE ARGUMENTS WERE HEARD: NOVEMBER 30, 2023
DATE ON WHICH JUDGMENT IS PRONOUNCED : FEBRUARY 08, 2024
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JUDGMENT :(Per : Abhay J. Mantri, J.) The petitioner has raised the grievance that holding of election to elect the members of respondent No.6-Agricultural Produce Market Committee, Tumsar (for short "APMC") before completion of the election process of 58 Gram-Panchayats from Mohadi Tahsil without inclusion of the names of members/Sarpanch from these 58 Gram-Panchayats in the voters' list, is illegal and bad in law.
2. Succinctly, the factual matrix of the case is as under :
(i) The petitioner was elected as Sarpanch of Gram-Panchayat, Hardoli, Tahsil-Mohadi, District-Bhandara in the elections held in 2017. The said Gram-Panchayat falls within the territorial jurisdiction of respondent No.6-APMC, Tumsar. Respondent Nos. 1 and 2 are the State of Maharashtra being represented through the Secretaries of the concerned Department.
Respondent Nos.1, 3, and 5 are the authorities concerned to hold the elections of respondent No.6-APMC, whereas respondent Nos. 2 and 4 are the authorities concerned to hold the elections of Gram-Panchayat situated in Tahsil-Mohadi within the territorial limits of APMC, Tumsar. Respondent No.6 is the Market Committee constituted under the Maharashtra Agricultural Produce Marketing (Development & Regulation) Act, 1963 (for short "APMC Act").
(ii) It is contended that the regular term of five years of elected members of respondent No.6-APMC expired on 20.09.2021. However, because of various reasons, election of the said APMC could not be 3 3011WP2105-23.odt conducted till 10.02.2023. Finally, on 10.02.2023 respondent No.5- Returning Officer declared the program to prepare the voters' list for the purpose of election to respondent No.6-APMC.
(iii) It is further stated that as per Section 13 of the APMC Act, out of 23 members of APMC, 18 are to be elected who have right to vote, whereas remaining 5 members, who held the office of APMC being representatives of constituent institute/office had no right to vote. Out of 18 elected members of APMC who have right to vote, 4 have to be elected from the members of Gram-Panchayats functioning within the territorial limits of APMC (of which 1 should be Scheduled Caste or Scheduled Tribe and 1 from Economically Weaker Section). This sub-constituency i.e. Gram-Panchayat is a part of the Agricultural Constituency.
(iv) That there are 172 Gram-Panchayats situated within the notified territorial limits of respondent No.6-APMC, out of which 97 Gram- Panchayats are in Tumsar Tahsil and 75 Gram-Panchayats are in Mohadi Tahsil. Each of these Gram-Panchayats on an average have approximately 10 to 12 elected members which means total elected members of the Gram- Panchayats being about 1700 to 1800 in number have a legal right to vote for electing 4 members of the APMC.
(v) It is further stated that the tenures of 58 Gram-Panchayats situated within Mohadi Tahsil and territorial limits of APMC, Tumsar have expired in November 2022 (Annexure 4). Accordingly, on 09.11.2022 respondent No.4-State Election Commission had declared the election programme to elect the Members and Sarpanch to these 58 Gram-Panchayats 4 3011WP2105-23.odt situated within Mohadi Tahsil. However, thereafter on 22.11.2022 respondent No.4-State Election Commission stayed said elections of 58 Gram- Panchayats for the reasons stated in the said order. In view of the expiry of the term of these 58 Gram-Panchayats, the Chief Executive Officer, Zilla Parishad, Bhandara by an order dated 17.11.2022 had appointed Administrators on the said Gram-Panchayats.
(vi) As per the programme to prepare voters' list dated 10.02.2023, on 20.03.2023 final voters' list for electing members to the respondent No.6- APMC was published i.e. two final lists for Gram-Panchayat Constituency in respect of Tumsar Tahsil and Mohadi Tahsil.
(vii) In view of the order dated 05.01.2023 passed in Writ Petition No. 3613 of 2022 along with other connected matters, respondent No.3- State Cooperative Election Authority issued an order dated 21.03.2023 directing to hold elections to various APMCs and complete the said election process by 30.04.2023. Pursuant to the said order, on 24.03.2023 respondent No.5-Returning Officer published the programme for holding elections to elect the members of respondent No.6-APMC.
(viii) It is further asserted that a bare perusal of the final voters' list of the Gram-Panchayat Constituency would show that out of about 75 Gram- Panchayats in Mohadi Tahsil, in 58 Gram-Panchayats there are no elected bodies and Administrators were appointed to conduct the affairs of the said Gram-Panchayats. Therefore, it is submitted that about 600 members of these 58 Gram-Panchayats who would have been voters for electing 4 members of the APMC, Tumsar from Gram-Panchayat Constituency have 5 3011WP2105-23.odt been deprived to vote because of non-holding of elections to said 58 Gram- Panchayats. Therefore, the present petition.
3. RIVAL SUBMISSIONS :
(a) Submissions of the learned Counsel for the petitioner :-
Learned Counsel Mr. Harish Dangre vehemently argued that as per Section 13 of the APMC Act, 4 members are to be elected by the members of 172 Gram-Panchayats. However, more than 50% of Gram-Panchayats from Mohadi Tahsil i.e. 58 Gram-Panchayats out of 75 who have about 600 voters, have been deprived of such voting right in view of non-holding of elections to the said Gram-Panchayats which has caused serious prejudice to such voters and candidates in the forthcoming elections of APMC. The act of the respondents denotes that they are holding the elections in absence of elected members of 58 Gram-Panchayats in Mohadi Tahsil. Therefore, non-inclusion of the elected members of 58 Gram-Panchayats in the voters' list has sabotaged the democratic process of elections. Hence, he has submitted that the elected members from these 58 Gram-Panchayats should also be permitted to participate in the election to elect 4 members from Gram-
Panchayat constituency in the elections to APMC, Tumsar. To buttress his submissions, he has relied on the following authorities.
(i) Union Territory of Ladakh & Others vs. Jammu and Kashmir National Conference & Another, [2023 SCC OnLine SC 1140].
(ii) Election Commission of India through Secretary vs. Ashok Kumar & Others, [(2000) 8 SCC 216].
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(b) Submissions of the learned Counsel for the respondents: -
Per contra, learned Counsel Mr. S.S. Ghate, Mr. J.B. Kasat, Mr. S.S. Paliwal for the respondents No.3, 4, and 6 respectively and learned Assistant Government Pleader Mr. N.R. Patil for the respondent Nos. 1, 2 and 5 while resisting the submissions would strenuously urged that as per the settled position of law, after the declaration of the election programme and commencement of the election process, no election can be called in question as prescribed in Article 329(b) of the Constitution of India. Hence, this Court should not interfere in the ongoing election process. On the contrary, the Court must guard the attempt made to interrupt, protract or stall the said election proceedings.
4. It is further argued that as per newly added Rule 7(5) to the Maharashtra Agricultural Produce Market Committee (Election to Committee) Rules, 2017 (for short "Rules of 2017"), the names of the newly elected members can be included as voters in the final voters' list not later than five working days before the last date of filing nominations. However, the date of filing nominations is already over. Therefore, even if elections to these 58 Gram Panchayats are held, the names of newly elected members of these 58 Gram-Panchayats cannot be included in the final voters' list after 31.10.2023.
5. It is further argued that neither the petitioner nor anybody has challenged the provisional voters' list or final voters' list till date. That being so, it is claimed that the petitioner is not entitled to challenge the same by
7 3011WP2105-23.odt the present petition. Likewise, the petitioner has not challenged the order of Election Commission dated 24.03.2023 in this petition. Lastly, it is submitted that the election process cannot be stalled due to the pendency of this petition and the petitioner is not entitled to claim the relief as prayed for. Hence, the learned counsel has urged for the dismissal of writ petition. In support of above submissions, reliance is placed on the following authorities :-
(i) Election Commission of India through Secretary vs. Ashok Kumar & Others, [(2000) 8 SCC 216].
(ii) Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Another vs. State of Maharashtra & Others, [(2001) 8 SCC 509].
(iii) Vijay s/o Rambhau Babhare vs. State Election Commission, [2007(3) ALL MR 628].
(iv) Rajkumar s/o Venkatrao Kalme & Others vs. State of Maharashtra & Others, [Writ Petition No.8472 of 2015 and other connected matters] decided on 04-5-2023.
6. It is pertinent to note that during the arguments, the learned counsel for both the sides categorically admitted that during the pendency of this petition, on 05.11.2023 elections to 58 Gram-Panchayats were conducted and the results were declared on 09.11.2023. Similarly, declaration of the election programme of APMC, Tumsar on 24.03.2023 is also not disputed.
7. In view of the above facts and rival submissions, we would like to take into consideration Section 13 of the APMC Act and certain relevant Rules of 2017.
8 3011WP2105-23.odt "Section 13 - Constitution of Market Committees (1) Subject to the provisions of sub-section (2) every Market Committee shall consist of the following members), namely :-
(a) "fifteen agriculturists residing in the market area (being persons who are not less than (twenty-one years of age on the date specified, from time to time, by the State Co-operative Election Authority, if required with the help of the Collector or the District Deputy Registrar, as the case may be,) in this behalf), as specified below :-
(i) Eleven (of which, two shall be women, one shall be a person belonging to Other Backward Classes and one shall be a person belonging to De-Notified Tribes (Vimukta Jatis) or Nomadic Tribes) shall be elected by members of the Managing Committees of the Agricultural Credit Societies and Multi-
Purpose Co-operative Societies (within the meaning of the Maharashtra Co-operative Societies Act, 1960 and the rules made thereunder) (which disburse the crop loan to its members), functioning in the market area:
Provided that, where the Market Committee is situated in Tribal areas, one person belonging to the Scheduled Tribes shall be elected in place of the election of the person belonging to the De-notified Tribes (Vimukta Jatis) or Nomadic Tribes as aforesaid; and
(ii) four (of which, one shall be a person belonging to the Scheduled Castes or Scheduled Tribes and one shall be a person belonging to Economically Weaker Section), shall be elected by members of village panchayats functioning in the market area;)
b) -------------------------"
A bare perusal of the said provision reveals that out of 15 members, 4 members shall be elected by the members of Gram-Panchayat functioning in the said market area.
8. Rule 3 of the Rules of 2017 deals with the powers and duties of the State Co-operative Election Authority to conduct the elections. Rule 4 of the Rules of 2017 reads as under :
"4. Duty of the State Co-operative Election Authority to hold election of the Market Committee (1) ------------
(2) ------------
9 3011WP2105-23.odt (3) The Secretary of the Market Committee shall with regard to the Market Committee, whose elections are to be held by the State Co-operative Election Authority under clause (b) of sub-section (1) of section 14 of the Act, make a report in Form 2 to the District Election Officer on or before the 30th November of every year, in respect of the Market Committee whose term of office is to expire in the succeeding year and the District Election Officer shall forward the same along with his report to the State Co-operative Election Authority, on or before the 31st December of every year. On receipt of such report, the State Co-operative Election Authority shall publish within 15 days, a list of Market Committees whose elections are due to be held in that market year."
Rule 5 of the Rules of 2017 provides for preparation of voters' list of various constituencies. As per Rule 5(1)(B) Gram Panchayat's Constituency is also included in it. Rule 6(1) of the Rules of 2017 provides for preparation of voters' list by the District Election Officer who is duty bound to call from the Block Development Officer to draw and furnish a list of members of Gram Panchayats showing distinctly the members belonging to the Scheduled Caste and Scheduled Tribes functioning in the market area before 180 days of expiry of term of the Market Committee or within such time as may be specified by him.
Sub-rule (2) of Rule 6 deals with preparation of voters' list of Gram Panchayats Constituency as per each Gram Panchayat indicating the details regarding members belonging to the Scheduled Caste and Scheduled Tribes.
Sub-rule (3) of Rule 6 provides for four copies of authenticated provisional voters' lists certified by the Secretary of the Market Committee in Form 4 to be delivered to the District Election Officer before 150 days of the date of expiry of the term of Committee in print as well as in digital form.
10 3011WP2105-23.odt Rule 8 of the Rules of 2017 provides for the right to vote. Every person whose name is entered in the final voters' list of the respective constituency shall be entitled to vote from the respective constituency.
Sub-rule (3) of Rule 9 of the Rules of 2017 provides that every person whose name is included in the voters' list prepared under Rules 6 and 7 shall unless disqualified under these Rules, be qualified to be elected to the Market Committee.
9. It is pertinent to note that sub-rule (5) is added in Rule 7 of the Rules of 2017 vide Notification dated 07.02.2023 as under :
"(5) In case of a newly elected committee of the Agricultural Credit Societies, Multi-purpose Co-operative Societies and Village Panchayats or where due to co-option of members of the Managing Committee by the Agricultural Credit Societies, Multi-purpose Co-
operative Societies and Village Panchayats, any person whose name is not entered in the final list of voters as published under sub-rule (3), may at any time but not later than five working days before the last date of making nominations, apply to the District Election Officer; and the District Election Officer or the person authorized by him, shall conduct an inquiry, in case the inquiry is conducted by the person authorised by the District Election Officer in this behalf, he shall submit the report of inquiry to the District Election Officer. Thereafter, the District Election Officer, as he deems fit, may make necessary changes in the final voter list."
This sub-rule provides for an embargo that in the case of newly elected committees of the Agricultural Credit Societies, Multi-purpose Co-operative Societies, and Gram Panchayats, any person whose name is not entered in the final voters' list as prescribed under sub-rule (3), may at any time but not later than five working days before the last date of filing nominations, apply to the District Election Officer; who after making necessary inquiry, may 11 3011WP2105-23.odt order necessary changes in the final voters' list . Said sub-rule prescribes for inclusion of the newly elected members whose names are not included in the final voters' list. A cut-off date is also specified to give finality to the list of voters.
POINTS FOR DETERMINATION :-
10. In view of the aforesaid facts and Rules of 2017, following crucial points arise for consideration:-
(I) Whether voters' list dated 20.03.2023 prepared by respondent No. 5-
Returning Officer for the election of respondent No. 6 APMC is just and proper?
(II) Whether the names of newly elected members of the 58 Gram-
Panchayats in Mohadi Tahsil within the territorial limits of respondent No. 6-APMC should be included in the list of voters dated 20.03.2023 instead of Administrators?
(III) What order?
CONSIDERATION :
11. It is to be noted that on 20.09.2021 five years' term of elected members of respondent No.6-APMC had expired. Therefore, as per Rule 4(3) of the Rules of 2017, it was incumbent on the Secretary of the Market Committee and Block Development Officer to make a report in Form 2, to the District Election Officer on or before 30.11.2020. But in the case at hand, it does not appear that in the specified time the concerned authority has submitted the report in Form 2 to the District Election Officer. Likewise, as 12 3011WP2105-23.odt per Rule 6 of the Rules of 2017, the Block Development Officer has to prepare and furnish the list of members of the Gram Panchayats to the District Election Officer before 180 days of the expiry of the term of Market Committee i.e. till March 2021 as the term of elected members of respondent No.6-APMC, Tumsar expired on 20.09.2021.
12. It is further noted that due to non-holding of elections to respondent No.6-APMC in time, on the expiry of the term of five years of elected members of respondent No.6-APMC, all the elected Members and Sarpanch of 58 Gram-Panchayats in Mohadi Tahsil were entitled to vote to elect 4 members in respondent No.6-APMC from the elected members of the Gram Panchayats.
13. Thereafter vide order dated 09.11.2022 the State Election Commission has declared the election programme for these 58 Gram- Panchayats. However, subsequently same was stayed on 22.11.2022 and therefore, no election could take place of these said 58 Gram-Panchayats. The election programme for conducting elections to respondent No.6-APMC was declared on 24.03.2023. However, due to the appointment of Administrators on the said 58 Gram-Panchayats vide order dated 17.11.2022 by the Chief Executive Officer, Zilla Parishad, Bhandara, names of the elected Members and Sarpanch of 58 Gram-Panchayat in Mohadi Tahsil were not included in the final voters' list, which was published on 20.03.2023.
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14. On 24.03.2023 respondents Nos. 4 and 5 declared the elections to APMC, Tumsar, and accordingly, published the election programme as per Annexure-6 (Page No.67 of writ petition). On perusal of the said programme, it appears that date of filing the nominations was notified from 27.03.2023 to 03.04.2023. The voting was scheduled on 28.04.2023 between 8 am to 4 pm. Counting of votes was scheduled on 29.04.2023 from 8 am followed by declaration of the results. The said programme denotes that it commenced on 27.03.2023 and was to end on 29.04.2023. However, as per the order dated 03.04.2023 passed in this petition, said elections were stayed and as of date, the said order is in force.
15. The respondents resisted the petition on the ground that as per Rule 7(5) of the Rules of 2017, the newly elected members could not be included in the voters' list as they failed to apply for insertion of their names in the voters' list before five working days of the last date of filing the nominations (03.04.2023) i.e. on or before 29.03.2023. Considering the provisions of the Rules of 2017, we are not inclined to accept the said submissions made by the respondents. As observed hereinabove, all the Members/Sarpanch of 58 Gram-Panchayats in Mohadi Tahsil became eligible to cast their votes as provided under Section 13(1)(ii) of the APMC Act. The elections to those 58 Gram-Panchayats were declared on 09.11.2022 and same were stayed by respondent No.4-State Election Commission. The State Election Commission was duty bound in law to conclude the elections of said 58 Gram-Panchayats whose elections were due. Without conducting the elections of 58 Gram-
14 3011WP2105-23.odt Panchayats, they have declared the election programme of respondent No.6- APMC. In fact, the respondents should have been sensitive to the fact that out of 75 Gram-Panchayats in Mohadi Tahsil, the tenure of 58 Gram- Panchayats' had expired in November 2022. That being so, as per the mandate of Article 243-E (3) of the Constitution of India, the respondents were constitutionally duty bound to hold and complete the election before the expiry of its tenure as specified in clause (1). It cannot be said that the same was beyond the control of the said respondents to hold the election in time. Therefore, as per the said provision, it was the constitutional duty of the respondents to conduct the election on time, i.e. before the expiry of the term. No explanation or reason has come on record as to why the period was extended till 24.03.2023.
16. Moreover, as per the provisions of the Acts and Rules of 2017, it was the duty of Election Officer to protect the rights of the voters while preparing the final voters' list. After expiry of the tenure of 58 Gram-Panchayats, and by order dated 17.11.2022, Administrators were appointed on the said Gram- Panchayats. As claimed by the learned Counsel for the petitioner, if it has taken into consideration that each Gram Panchayat has approximately 10 elected members who have a right to vote to elect 4 members of the APMC from the Gram Panchayat constituency as provided under Section 13(1)(ii) of the APMC Act. Near about 500 eligible voters would have exercised such right which is deprived by the respondent-Authorities by not conducting themselves in accordance with Rules. That being so, it was incumbent on the 15 3011WP2105-23.odt respondents to guard the statutory rights of these voters as they cannot be said to be at fault. On the contrary, there is reason to believe from the above observations that the delay was caused on the part of the respondents in conducting the elections to the APMC.
17. It further reveals that as per the said election programme, the election process should have been completed on or before 29.04.2023. However, because of grant of stay by this Court on 03.04.2023, the election process could not be completed in time. Therefore, the respondents are duty bound to declare a fresh program, by adopting the cut-off date as per Rule 4(3) of the Rules i.e. five working days prior to last date of filing nominations. In such eventuality, the respondents must re-schedule the election programme. Therefore, we do not find substance in the contention of the respondents that they are not entitled to include their names in the voters' list.
18. From the narration of above conduct of the respondents, rather artificial conduct of the respondents, it can be safely noted that they are hell- bent to frustrate the statutory rights of the elected members of Gram Panchayat by denying them right to vote in the democratically conducted institution. Election Officer had the intentions to hold the elections as per his whims, suitability, and feasibility bypassing the mandate of the law. In the case at hand, as per the provisions of the Act, the elections should have been held immediately after the term of the elected body has expired, however the same could not be conducted in time for which no convincing reasons have come on record.
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19. The Court cannot overlook the fact that out of electoral roll from 75 Gram-Panchayats in Mohadi Tahsil, elected members of 58 Gram-Panchayats, i.e. more than 50% of the total, are not included in the final voters' list which certainly affect their statutory right to cast a vote in absence of such members being at fault. The respondents themselves can be said to be at fault for not holding the elections to the Gram-Panchayats as well as respondent No.6-APMC in time. Therefore, in our view, it would be proper to protect the statutory rights of the newly elected Members and Sarpanchs of 58 Gram-Panchayats by directing the respondents to include their names in the final voters' list to facilitate the free and fair election as the respondents are duty bound to re-schedule the election programme by publishing it afresh.
20. Moreover, as per Rule 7(5) of the Rules of 2017, the District Election Officer is empowered to make necessary changes in the final voters' list if he deems fit. In the case in hand, it has come on record that during the pendency of the petition, the elections to 58 Gram-Panchayats have been held and the results were declared on 09.11.2023. Accordingly, as per Rule 7(5) of the Rules of 2017, the District Election Officer can make necessary changes by insertion/ inclusion of the names of these elected members of Gram Panchayat in the final voters' list to enforce their statutory right to cast their votes.
21. (i) The learned Counsel for the petitioner has relied upon the judgment in the case of Union Territory of Ladakh & Others vs. Jammu and Kashmir National Conference & Another [2023 SCC OnLine SC 1140] and Election 17 3011WP2105-23.odt Commission of India through Secretary vs. Ashok Kumar & Others, [(2000) 8 SCC 216]. In the said case, the Hon'ble Supreme Court has held as under -
"36. We are conscious that, by way of certain pronouncements, some of which are alluded to in this judgment, the Court extended principles relating to elections to Parliament, State Assemblies, and Municipalities to other arenas as well. Indicatively, the interpretation of judgments is always to be made with due regard to the facts and circumstances of the peculiar case concerned. We have looked at Articles 243-O, 243ZG, and 329 of the Constitution, and conclude that no bar hit the High Court, even on principle. Apart from the judgments expressly considered and dealt with, hereinbefore and hereinafter, we have perused, out of our own volition, the decisions, inter alia, of varying Bench-strength of this Court in N P Ponnuswami v Returning Officer, Namakkal Constituency, (1952) 1 SCC 94 : 1952 SCR 2187; Durga Shankar Mehta v Thakur Raghuraj Singh,(1955) 1 SCR 267; Hari Vishnu Kamath v Syed Ahmad Ishaque, (1955) 1 SCR 1104; Narayan Bhaskar Khare (Dr) v Election Commission of India, 1957 SCR 1081; Mohinder Singh Gill v Chief Election Commissioner, (1978) 1 SCC 405; Lakshmi Charan Sen v A K M Hassan Uzzaman, (1985) 4 SCC 689; Indrajit Barua v Election Commission of India, (1985) 4 SCC 722; Election Commission of India v Shivaji, (1988) 1 SCC 277; Digvijay Mote v Union of India, (1993) 4 SCC 1758, Boddula Krishnaiah v. State Election Commissioner, Andhra Pradesh, (1996) 3 SCC 416; Anugrah Narain Singh v. State of Uttar Pradesh, (1996) 6 SCC 303; Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216; Kishansing Tomar v. Municipal Corporation, Ahmedabad, (2006) 8 Scc 352;
West Bengal State Election Commission v. Communist Party of India (Marxist), (2018) 18 Scc 141; Dravida Munnetra Kazhagam v. State of Tamil Nadu, (2020) 6 Scc 548; Laxmibai v. Collector, (2020) 12 SCC 186, and last but not the least, State of Goa v. Fouaziya Imtiaz Shaikh, (2021) 8 SCC 4012. On scrutiny, in combination with the timelines and facts of the matter herein, we are sure that the High Court did not falter."
(ii) Perused the judgments relied upon by the learned Counsel for the respondents. In the case of Election Commission of India through Secretary v. Ashok Kumar and Others, [(2000) 8 SCC 216] the Three Judge Bench of the Hon'ble Supreme Court after considering the ratio laid down by 18 3011WP2105-23.odt the Constitutional Bench in the case of N. P. Ponnuswami vs. Returning Officer, Namakkal Constituency [AIR 1952 SC 64]and Mohinder Singh Gill vs. Chief Election Commr. [(1978) 1 SCC 405] has held as under :
"28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for the welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming the role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
31. The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question"
in the body of Section 329 (b) and these words provide the determinative test for attracting applicability of Article 329 (b). If the petition presented to the Court "calls in question an election the bar of Article 329 (b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-
(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-
settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
19 3011WP2105-23.odt (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and the stage is set for invoking the jurisdiction of the Court.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting, or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts' indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
In the said case, the facts were, the election programme was announced, and pursuant to the said programme the polling in the State of Kerala took place on 11.09.1999. The counting of votes was scheduled on 06.10.1999. The petitioner therein challenged the notification issued by the Election Commission of India before the High Court and the High Court in the exercise of its writ jurisdiction directed the election commission and the Chief Electoral Officer to make counting booth-wise. Against the said order the petitioner had preferred Special Leave to Appeal before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court had set aside the order passed by the High Court and observed that no election shall be called in question. However, in the case at hand, the petitioner is not questioning the election process but only prayed that without inclusion of the names of the 20 3011WP2105-23.odt members of 58 Gram-Panchayats in Mohadi Tahsil, the preparation of the voters' list be declared as against the provisions of Section 13 of the APMC Act. Thus, considering the said facts as well as the above discussion, we are of the opinion that the observations made by the Hon'ble Supreme Court in the case of Election Commission of India & Others (supra) are not helpful to the respondents in support of their defence.
(iii) In the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Another vs. State of Maharashtra & Others [(2001) 8 SCC 509], the Hon'ble Supreme Court has held as under:-
"In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal."
In the said case, the society was registered under the Maharashtra Co-operative Societies Act, of 1960. The dispute regarding the preparation of the electoral roll was challenged by the petitioner therein on the ground that there was a breach and non-compliance of the mandatory provisions of the Rules during preparation of the electoral roll. The High Court had rejected the petition observing that preparation of 21 3011WP2105-23.odt the electoral roll can be challenged in the election petition under Section 144-T of the Maharashtra Co-operative Societies Act, 1960 after the declaration of the result where the election process has already been commenced. The said order was confirmed by the Hon'ble Apex Court. In the said case, the term of the elected Managing Committee of the society was due to expire in the year 1999, thereafter the Collector took steps for preparation of the electoral roll of the society. For that same, the Collector announced the programme for the finalization of the electoral roll of the society and accordingly, on 04.06.1999 the provisional electoral roll was published. However, in the case at hand, the tenure of members of respondent No.6-APMC had expired on 20.09.2021 and the respondents have not taken any steps for preparation of the voters' list as per Rules or for publishing the election programme till 20.03.2023. Moreover, on the date of expiry of the term of the elected members of respondent No.6-APMC, the members of 58 Gram-Panchayats were eligible to cast their votes. Therefore, in our view, they are deprived of their statutory rights to cast the vote in the elections to the respondent No.6-APMC. Therefore, the observations made in the said decision are not helpful to the respondents in support of their contentions.
(iv) In Vijay s/o Rambhau Baghare vs. State Election Commission, [2007(3) All MR 628], this Court has held that the right to vote or to contest as a candidate in elections is a special right created by the statute and can only be exercised by conditions laid down by the statute. Thus, it is observed 22 3011WP2105-23.odt that "it is a statutory right of a person to cast a vote ". It is further observed that "the Returning Officer is dealing with the statutory rights of the parties when he accepts or rejects the nomination form of a particular candidate belonging to a particular party. The Returning Officer is entrusted with the responsibility to do all such acts as may be necessary for effectively conducting the elections including the act of scrutinizing nomination papers for determining the eligibility of candidates or supervising or directing counting while election."
In the above case challenge was to the order of the Returning Officer refusing to accept his candidature. A preliminary objection was raised by the respondents therein that it is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India bypassing the machinery designated by the Act for determining the election dispute. This Court had refused to exercise its extraordinary jurisdiction and had observed that the said issue can be raised in an election petition after completion of the election process. However, in the case at hand, issue pertains to holding the elections of the respondent-APMC contrary to the statutory provisions.
(v) In Writ Petition No.8475/2015 along with connected matters, the learned Single Judge of this Court had framed questions and referred the matter to the Division Bench of this Court to answer the points raised in the said reference.
23 3011WP2105-23.odt While answering, this Court has held that the erstwhile/former (past) members are not eligible to contest the elections to APMC as they were not members of the Gram-Panchayats on the date of polling. Furthermore, it was held that every member of the Gram Panchayat in the final voters' list, if not disqualified, is entitled to vote for having ceased to be a member of the Gram Panchayat on the date of the voting. Lastly, in the said Judgment, the Division Bench, after considering the provisions of the Act and Rules, particularly Rule 7(5) held that any newly elected member of the Gram- Panchayat whose name is not included in the final voters' list can apply to include the name in the final voters' list before five working days of the last date of making the nomination. However, after the said cut-off date, the name cannot be included in the voters' list. In the case in hand, the fresh election programme is yet to be declared, and, therefore, as per the observations in the said case, the elected members of 58 Gram-Panchayats can statutorily claim inclusion of their names in the final voters' list.
22. On a perusal of the aforesaid authorities, it emerges that no election shall be called in question before the Court of law and that questioning may have the effect of interrupting, obstructing or protracting the election process in any manner. However, anything done toward completing or in furtherance of the election process cannot be described as questioning the election. Thus, parameters were settled by the Constitution Bench of the Hon'ble Supreme Court. It was also held that the Court must guard against any attempt at retarding, interrupting, protracting, or stalling of the election process. Care 24 3011WP2105-23.odt has to be taken to see that there is no attempt to utilize the Court's indulgence in the matter. Similarly, it appears that the right to vote or to stand as a candidate for election is a special right created by the statute and can only be exercised by conditions laid down by the statute.
23. It is grievance of the petitioner that respondents No.5 and 6 before completion of election process of 58 Gram-Panchayats in Mohadi Tahsil had prepared the voters' list and thereby deprived the newly elected members/Sarpanch of those Gram-Panchayats of their statutory right to vote or to contest as a candidate. They are neither seeking relief to stall the election nor interrupting or protracting the election process but more than 50% of members of the Gram-Panchayats in Mohadi Tahsil have been deprived of their statutory right of casting to vote as their names are not included in the final voters' list thereby frustrating the very purpose and object of conducting the elections.
24. We can understand that the elections of the APMC may not be stalled if few gram panchayats are not in a position to participate in the elections. But that would not be the case if out of 75 Gram Panchayats, Members and Sarpanchs of 58 Gram Panchayats are not be in a position to participate in the elections as aforementioned. At this juncture, we think it apt to state that judicial restraint cannot and should not be such that it amounts to judicial abdication and judicial passivism. In paragraphs 21 and 37 of the judgment in Union Territory of Ladakh & Other (Supra), the Apex Court has held as under:-
25 3011WP2105-23.odt "21. The High Court, being a Constitutional Court, is not, by any stretch of imagination, precluded from issuing a direction of the nature issued by it in the instant case, under Article 226 of the Constitution of India, more so when such direction does not violate any statutory provision. In High Court of Tripura v. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663, this Court had answered, in the affirmative, as to the power of the High Courts under Article 226 to direct for actions, in a rare and exceptional situation, which do not find mention in the provisions concerned....
37. We would indicate that the restraint, self-imposed, by the Courts as a general principle, laid out in some detail in some of the decisions supra, in election matters to the extent that once a notification is issued and the election process starts, the Constitutional Courts, under normal circumstances are loath to interfere, is not a contentious issue. But where issues crop up, indicating unjust executive action or an attempt to disturb a level-playing field between candidates and/or political parties with no justifiable or intelligible basis, the Constitutional Courts are required, nay they are duty-bound, to step in. The reason that the Courts have usually maintained a hands-off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof......."
25. The judiciary cannot abdicate the solemn duty that the Constitution has placed on its shoulder i.e. to protect the statutory rights of the citizens as in the case in hand, failure of the respondent-Authorities in timely holding the elections of members of 58 Gram-Panchayats who were having the right to elect 4 members of the APMC from the Gram Panchayat constituency are unlawfully ousted from the election process of APMC. Non-inclusion of their right certainly would cause prejudice and also adversely affect the election process. In such circumstances, the Court cannot overlook the artificial curtailment of the statutory right to cast a vote by Members/Sarpanch of 58 26 3011WP2105-23.odt Gram-Panchayats in Mohadi Tahsil without they being at fault. Such lawful voters are deprived of their statutory right to cast their votes as the respondents have failed to hold the election of respondent No.6-APMC as well as 58 Gram-Panchayats in time. In People's Union For Civil Liberties and Another V. Union of India and Another [(2013) 10 SCC 1], in paragraph 54 the Supreme laid the following principle :-
"54. No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory significance attached with the right is massive...."
26. In such an eventuality, in our view, to facilitate the completion of the election programme, it would be proper to direct the respondents to reschedule the election programme by including the names of newly elected members/Sarpanch of those 58 Gram Panchayats in the voters' list instead of stalling the same pursuant to the order dated 03.04.2023. It is to be noted that till this date since the respondents have not challenged the order dated 03.04.2023, it appears that they do not have any grievance about the said order. In such circumstances, it cannot be said that permitting the newly elected members/Sarpanch of 58 Gram-Panchayats to cast their votes to elect 4 members of the APMC would stall, obstruct, or delay the election process. On the contrary, it seems that by directing the respondents to include the names of newly elected Members/Sarpanch of 58 Gram-Panchayats, the Court is subserving the process of the election process and facilitating its completion in a democratic manner by protecting the statutory rights of the 27 3011WP2105-23.odt elected members of Gram Panchayat to cast their votes. In such an eventuality, prayer of the petitioner cannot be said to be calling the election in question, but rather it facilitates the election process by protecting the statutory rights of the eligible voters.
CONCLUSION :
27. Having considered the aforesaid facts and legal provisions and the dictum laid down by the Hon'ble Supreme Court, it appears that on 20.09.2021 the tenure of the elected members of respondent No.6-APMC had expired and the respondents have failed to conduct the elections within the prescribed period of one year. If the said elections had been conducted in time, then certainly they would have been eligible voters to elect 4 members of APMC from the Gram Panchayat constituency.
28. Secondly, despite announcing the election programme, on 09.11.2022 respondent No.4-State Election Commission had stayed the same by its order dated 22.11.2022 and, therefore, the election of 58 Gram- Panchayats in Mohadi Tahsil could not take place. No reasons have been cited by the respondents for staying the said elections.
29. The election programme was scheduled from 27.03.2023 to 29.04.2023. The said period has already lapsed and, therefore, it is incumbent on the respondents to publish a fresh election programme for conducting the elections of respondent No.6-APMC.
28 3011WP2105-23.odt
30. It also appears that during the pendency of the petition, the respondents have conducted the elections of 58 Gram-Panchayats in Mohadi Tahsil and completed the same. They have also declared the results of the said elections on 09.12.2023. Therefore, in our view, as per Rule 7(5) of the Rules of 2017, the newly elected Members/Sarpanch of 58 Gram-Panchayats are entitled to have their names included in the final voters' list the direction needs to be given to respondent Nos. 4 and 5 to include the names of the newly elected members of 58 Gram-Panchayats in Mohadi Tahsil in the final voters' list to subserve the election process as well as protect their statutory right to cast their vote.
31. Having regard to the aforesaid discussion, we answer point No. 1 in the negative and point No. 2 in the affirmative. As a result, in the interest of justice, we deem it appropriate to pass the following order:-
(a) Respondent No.4-State Election Commission and respondent No.5-
District Returning Officer are hereby directed to include the names of newly elected Members/Sarpanch of 58 Gram-Panchayats in Mohadi Tahsil in the final voters' list dated 20.03.2023 as per Rule 7(5) of the Rules of 2017, within six weeks from the date of receipt of the copy of this judgment.
(b) Respondent No.5-District Returning Officer is further directed to publish the fresh election programme and shall conclude the elections to respondent No.6-APMC, Tumsar within a period of three months thereafter in accordance with law.
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32. Rule is made absolute in aforesaid terms. No costs.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
adgokar/APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 08/02/2024 19:06:01