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2009 DIGILAW 1703 (BOM)

VITTHAL s/o DATTU GORE v. STATE OF MAHARASHTRA

2009-12-10

K.U.CHANDIWAL, NARESH H.PATIL

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JUDGMENT NARESH H. PATIL, J. :- Rule, rule made returnable forthwith. By consent of the learned counsel for the parties taken up for hearing. 2. The petitioner is elected member of the Panchayat Samiti Dharur, District Beed. The Panchayat Samiti consists of 6 members. The election of Panchayat Samiti, Dharur for the six seats was held in February, 2007 according to the petitioner. In the month of March, 2007 election to the office of the Chairman of the Panchayat Samiti was held for a period of two and half years. Due to operation of Code of Conduct for the Assembly elections, the election for the office of the Chairman was not held in October, 2009. A programme was published by respondent No. 2 - Collector on 4-11-2009 and in the Official Gazette of the State of Maharashtra dated 11-11-2009 thereby fixing the reservation of offices of the Chairmen of 11 Panchayat Samitis in Beed District. The petitioner contends that the office of the Chairman of the Panchayat Samiti Dharur was reserved for candidate belonging to Scheduled Tribe. 3. The Member of the Panchayat Samiti belonging to Scheduled Tribe category was not available. Therefore the respondent No.2 - Collector in view of the provisions of Maharashtra Zilla Parishads (President, Vice-President and Chairmen of Subjects Committee) and Panchayat Samitis (Chairman and Deputy Chairman) (Reservation of Offices and Election) Rules, 1962 (for short, "the Rules") dereserved the office of the Chairman of the Panchayat Samiti by an order dated 4-11-2009 which was published in Official Gazette dated 11-1-2009. 4. The respondent No. 2 - Collector Beed by a notice dated 16-11-2009 called a special meeting of the members of the Panchayat Samiti Dharur on 27-11-2009 at 2.00 p.m. for the purpose of election of the Chairman and Vice Chairman of Panchayat Samiti Dharur. In the meanwhile, the issue which was referred to the respondent No. 1 in respect of de-reservation was considered by the State and by a communication/order dated 25-11-2009 it was informed that the view adopted by the respondent No. 2 - Collector of de-reservation of the office of the Chairman of the Panchayat Samiti Dharur from the said category was wrong in view of the provisions of clause (6) of Rule 2-F of the said Rules. The State Government directed that in such contingency the office of the Chairman is to be allotted to a candidate by drawing lots to any of the categories for which the office of the Chairman is reserved in view of the provisions of section 67 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (for short, "the Act"). 5. The Collector Beed by a notice dated 26-11-2009 scheduled a special meeting of the Panchayat Samiti on 1-12-2009 at 2.00 p.m. for electing the Chairman and Vice Chairman of the Panchayat Samiti. The petitioner submits that on the same day i.e. on 26-11-2009 by another notice the Collector Beed scheduled a meeting of the Panchayat Samiti Dharur on 28-11-2009 at 4.00 p.m. for drawing lots. The Collector, therefore issued notice to the petitioner and other members of the Panchayat Samiti Dharur. The special meeting scheduled on 27-11-2009 was postponed to 1-12-2009. The meeting was accordingly conducted on 28-11-2009 and the minutes of the meeting were drawn. It is reflected from the minutes of the meeting that in the earlier years of 2002, 2004, 2006 and 2008 the office of the Panchayat Samiti Dharur was reserved for Woman (General), General, Backward Class of the society and Scheduled Tribe respectively. And therefore in view of the Government Circular dated 20th June, 2009 the office of the Chairman would be reserved for candidate belonging to Scheduled Castes category. 6. The petitioner raises challenge to the minutes of the said meeting and the proceedings. 7. The learned counsel Mr. Mahesh Deshmukh appearing for the petitioner submits that the respondent Nos. 2 and 3 committed error because by a communication dated 25th November, 2009 the Government specifically directed to hold the election of the office of the Chairman of the Panchayat Samiti by drawing lots from the categories of reserved class in view of the provisions of sub-rule (6) of Rule 2F of the said Rules. The respondent No.2, instead, adopted a view that as candidate from Scheduled Castes did not get benefits 0f reservation policy since the year 2002 onwards, the office of the Chairman was to be reserved for Scheduled Castes category candidate. The respondent No.2, instead, adopted a view that as candidate from Scheduled Castes did not get benefits 0f reservation policy since the year 2002 onwards, the office of the Chairman was to be reserved for Scheduled Castes category candidate. The learned counsel for the petitioner submits that in view of the provisions of section 67(5) of the Act and Rule 2F(6) of the Rules the decision of reserving the office of the Chairman of the Panchayat Samiti Dharur for a candidate belonging to Scheduled Castes was erroneous and against the clear directions and mandate of the State Government issued to the respondent Nos. 2 and 3. 8. On behalf of the respondent Nos. 2 and 3, affidavit-in-reply is filed. The learned Assistant Government Pleader Shri S. K. Tambe submits that Rule 2F(6) of the Rules cannot be read in isolation but the same has to be considered in the light of the provisions of section 67 of the Act. Exclusion clause as reflected in the provisions applies to the facts of the present case. The learned Assistant Government Pleader further submits that out of 11 Panchayat Samitis, one seat was reserved for OBC (Women) in the district for Panchayat Samiti Ashti. While explaining the directions of the State Government to the Collector Beed in respect of drawing of lots and cancelling the order of de-reservation the learned Assistant Government Pleader submits that the State Government was probably not aware of the facts situation of the rotation policy implemented in the Beed District and, therefore, the State might have issued such directions for drawing of lots. In the submissions of the Assistant Government Pleader if the contentions of the petitioner are allowed then reservation quota will exceed and a particular class of reserved category would get benefit of reservation in excess. In past, OBC category candidate was elected as Chairman of the Panchayat Samiti. Therefore, the respondents authorities after considering the entire factual position decided to allot the office of the Chairman to the Scheduled Castes category. In the submission of the learned Assistant Government Pleader, the petitioner has no locus standi. The petitioner was elected from OBC (Male) reserved category. 9. The learned counsel Shri V.D. Sapkal appearing for respondent No.8 submits that in view of the provisions of Article 243D of the Constitution of India the respondent Nos. In the submission of the learned Assistant Government Pleader, the petitioner has no locus standi. The petitioner was elected from OBC (Male) reserved category. 9. The learned counsel Shri V.D. Sapkal appearing for respondent No.8 submits that in view of the provisions of Article 243D of the Constitution of India the respondent Nos. 2 and 3 rightly reserved the office to the Scheduled Castes category. Taking a different view would go contrary to the provisions of the Constitution according to the counsel. The learned counsel supports the submission of the Assistant Government Pleader. 10. Under the interim orders of this Court, the election to the office of the Chairman of the Panchayat Samiti Dharur was stayed. 11. The provisions of section 67 of the Act speak about the procedure for election of Chairman of Panchayat Samiti and reservation in the office of the Chairman in the Panchayat Samitis for the members belonging to the Scheduled Castes, the Scheduled Tribes, the category of Backward Class of citizens and women. 12. The relevant Rule 2F(6) of the Rules reads thus: "2F. Manner of allotment and rotation of offices of Chairman of Panchayat Samiti for Scheduled Castes and Scheduled Tribes: (6) Notwithstanding anything contained in these rules, if the office of the Chairman of Panchayat Samiti is reserved for the Scheduled Castes, the Scheduled Tribes, or, as the case may be, the category of Backward Class of Citizens (including Vimukta Jatis and Nomadic Tribes); and no Elected member belonging to such Castes, Tribes or, as the case may be, the category of Backward Class of Citizens is available, then such office for the same tenure shall be allotted by draw of lots to any of the categories for which the office of Chairman may be reserved under section 67 of the Act. Provided that, in case where there is only one Elected member belonging to particular category for which such office has been reserved and has filed the nomination form, then such office shall be declared for such member, and if there are one or more elected members of such category and none of them has filed the nomination form, then such office for the same tenure, shall be allotted by draw of lots to any of the categories for which the office of the Chairman may be reserved under section 67 of the Act: Provided further, that, in a case where the office of the Chairman is reserved for women belonging to the Scheduled Castes or the Scheduled Tribes or, as the case may be, the category of Backward Class of Citizens and no elected woman member belonging to such Castes or Tribes or, as case may be, the category of Backward Class of Citizens is available, then the office of Chairman, for the same tenure, shall be treated as (i) if originally reserved for women belonging to the Scheduled Castes then for the Scheduled Castes, (ii) if originally reserved for women belonging to the Scheduled Tribes, then for the Scheduled Tribes; and, (iii) if originally reserved for women belonging to the Backward Class of Citizens, then for the Backward Class of Citizens. 13. Reading of the Rule 2F(6) makes it clear that in case reserved category candidate is not available then the office shall be allotted by drawing of lots to any of the categories for which the office of the Chairman may be reserved under section 67 of the Act. From the harmonious reading of the provisions of section 67 of the Act and the Rule 2F(6) of the Rules what emerges is that the draw of lots will have to be drawn from the categories of reserved class for which the office of the Chairman would be reserved under section 67 of the Act. In the present case we are informed that the categories from which the lots would be drawn are Scheduled Castes, Backward Class of citizens and women. 14. It would not be proper to exclude categories which earlier got representation in the view of the respondents. 15. Reliance is placed by the respondents on Government Circular dated 20th June 2009 in support of their statement is misplaced one. 14. It would not be proper to exclude categories which earlier got representation in the view of the respondents. 15. Reliance is placed by the respondents on Government Circular dated 20th June 2009 in support of their statement is misplaced one. The submissions regarding petitioner's locus standi are of no consequence. The petitioner being a Member of the Panchayat Samiti is entitled to file the petition and raise an issue though earlier he did not raise any objection when the special meeting was called by the Collector. 16. In the light of the provisions of law and the facts of the case we find that the direction issued by the State (Exhibit C) on 25th November, 2009 to the Collector were not properly followed. We do not find any justifiable reason with the authorities to flout those directions and devise a mechanism of their own to reserve the office of the Chairman of the Panchayat Samiti for a candidate belonging to Scheduled Castes. In the light of the aforementioned reasons we are inclined to allow the petition. 17. The order/minutes of the meeting dated 28-11-2009 about reservation of the office of the Chairman of the Panchayat Samiti Dharur (Exhibit "F") is quashed and set aside. 18. We direct that the office of the Chairman of the Panchayat Samiti Dharur, District Beed shall be reserved by drawing of lots strictly in accordance with the directions issued by the State Government as reflected in communication dated 25th November, 2009 (Exhibit "C") and thereafter the respondent Nos. 2 and 3 shall hold the elections accordingly, at the earliest. 19. Rule is made absolute in the above terms with no order as to costs. Petition allowed.