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2019 DIGILAW 798 (BOM)

Sirajuddin v. State of Maharashtra

2019-03-19

R.K.DESHPANDE, S.M.MODAK

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JUDGMENT : R.K. Deshpande, J. 1. Rule made returnable forthwith. Heard finally by consent of learned Counsel appearing for the parties. 2. Three voters in the elections of Municipal Council, Sindkhedraja have preferred this Writ Petition claiming reliefs in prayer clauses (1) and (i-a) as under: (1) Quash and set aside corrigendum dated 17/12/2018 issued at Annexure-5 by directing State Government to follow rule of rotation of post of President for keeping reservation by excluding general category candidate from said reservation and by further directing said post to be reserved for OBC women category as from last more than 23 years, not a single post is provided for said category. (i-a) direct respondents to include necessary reserved post for S.T. category i.e. 3 in number, in all 17 posts so as to remove injustice given to the S.T. category candidates. 3. Challenge in the petition is to the corrigendum dt. 17.12.2018 at Annexure-5 by which the post of President Municipal Council, Sindkhedraja is to be filled in from open category by cancelling the earlier reservation notified vide notification dt. 27.3.2017 for the Scheduled Caste/Scheduled Tribe category or Other Backward category. The claim is also to reserve posts of Councilors for Scheduled Tribe in proportion to the figure of population. 4. It is urged in support of prayer clause (i) that the post of President Municipal Council, Sindkhedraja is being filled in from open category right from October, 2011 and there had been no reservation in the said post for Scheduled Caste, Scheduled Tribe or Backward Class of Citizens category. According to the petitioners, now in the General elections scheduled to be held on 24.3.2019, the post of President has to be reserved for the SC/ST/OBC in accordance with Rule 3(2)(i) of the Maharashtra Municipal Councils (Direct Elections to the post of President) Rules, 2016 (hereinafter referred to as "the Rules of 2016") and it cannot be filled in from the open category which is required to be excluded. 5. In support of claim in prayer clause (i-a) of the petition, it is urged that not even a single post of a Councilor is reserved for Scheduled Tribe category in the ensuing elections. 5. In support of claim in prayer clause (i-a) of the petition, it is urged that not even a single post of a Councilor is reserved for Scheduled Tribe category in the ensuing elections. It is urged that at-least one post of the Councilor in General elections of Municipal Council, Sindkhedraja is required to be reserved for Scheduled Tribe category on the basis of population figure of 192 shown by the respondents themselves. It is urged that the action violates provisions of Section 9 of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 (hereinafter referred to as "the Act of 1965") read with Article 243-T of the Constitution of India, 1950. 6. The respondents do not dispute that on earlier occasions, the post of President Municipal Council was filled in from open category. It is not disputed that in the elections to be held on 24-3-2017, the post of President is required to be filled in from open category. According to the respondents, this has been done on the basis of lots drawn as per the decision of the Cabinet on 5.10.2016 and subsequently, on 4.12.2018. The stand of respondents is that such exercise is in conformity with Rule 3(2)(ii)(a) of the Rules of 2016. According to the respondents, the provision of Rule 3(2)(i) of the Rules of 2016 relied upon by the petitioners is not at all attracted and even if it is attracted, it speaks of exclusion of reservation for Scheduled Caste, Scheduled Tribe and Backward Class of Citizens on the earlier occasions and not for open. So far as the contention of reservation of at-least one post of Councilor for Scheduled Tribe is concerned, the stand taken is that this has been done with reference to largest percentage of population of the said category in the Municipal Councils to the total population of such Councils in the descending order. According to the respondents, both the objections are unsustainable. 7. We find that, on 19.5.2016, the amended provision of Section 51A-1A of the Act of 1965 has been brought into force introducing the process of direct election to the post of President of Municipal Councils and the earlier method of electing President by the Councilors was dispensed with. Resultantly, the earlier Maharashtra Municipal Councils, Nagar Panchayats (President Election) Rules, 1981 regarding reservation stood replaced by the Rules of 2016. Resultantly, the earlier Maharashtra Municipal Councils, Nagar Panchayats (President Election) Rules, 1981 regarding reservation stood replaced by the Rules of 2016. Hence, all the past transactions of reservation have lost significance. 8. It is not in dispute that, after this amendment, it is the first election which is being held for the post of President Municipal Council, Sindkhedraja. In terms of Rule 3(2)(ii-a) of the Rules of 2016, the reservation of Office of President and also Municipal Councilors in the General elections of Municipal Council are made with reference to largest percentage of population of said category in the Municipal Councils to the total population of said Municipal Councils in the descending order. There is no challenge to the procedure adopted to allot reserved seats to different Municipal Councils as per Rule 3(2)(ii)(a) of the Rules of 2016. It is not the case of the petitioners that the decision to fill in the post of President in the ensuing elections or the reservation of seats of Councilors for that purpose is not in conformity with the provision of Rule 3(2)(ii)(a) of the Rules of 2016. 9. The provision of Rule 3(2)(i) therein to exclude the earlier reservation, if any in the post of President for SC/ST/OBC in the immediately preceding terms, neither does apply to a situation where the post of President in the preceding elections was filled in, not from SC/ST/OBC, but from open nor to the first elections held after coming into force of the amendment introducing provision of Section 51A-1A in the Act of 1965. The said provision has no applicability in the facts and circumstances of this case. This provision can be invoked only in the elections subsequent to first elections after the amendment. Similarly, the provision of Article 243-T of the Constitution of India shall come into operation if seat is required to be reserved for ST under Rule 3(2)(ii)(a) of the Rules of 2016. The argument of the petitioners is based upon misconception of facts and law. 10. In view of aforesaid position, we do not find any substance in the petition. Same is, therefore, dismissed.