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2021 DIGILAW 56 (BOM)

ATUL BHASKAR MORE v. STATE OF MAHARASHTRA

2021-01-11

S.J.KATHAWALLA, VINAY JOSHI

body2021
JUDGMENT : S. J. KATHAWALLA, J. :— By the above Writ Petition, the petitioner seeks to challenge the formation of wards and reservation of each wards in Gram Panchayat Chale, Taluka – Pandharpur, District – Solapur and the Order passed by the Collector on 23rd October, 2020, dismissing the Appeal filed by the petitioner. 2. The reliefs sought in the above Writ Petition are as follows : “(b) This Hon’ble Court by virtue of his appropriate order be pleased to call for record and proceedings of proceeding in respect of deciding the objections on the formation of wards and the reservation of each wards in Village Chale, Tal-Pandharpur, District – Solapur and order passed thereon by the Collector on 23rd October, 2020, after going through its validity, legality and proprietory of the said order the same be quash and set aside. (c) This Hon’ble Court by virtue of his appropriate order be pleased to direct to the respondent No. 2 learned Collector Solapur to reconsider the proceeding in respect of formation of the wards and the reservation filed to the respective wards of village Chale, Tal – Pandharpur, DistSolapur pursuant to the notice issued under Rule 5(2) of the Bombay Village Panchayat Rules, 1966. (d) This Hon’ble Court by virtue of his appropriate order be pleased to stay the operation, implementation and execution of the impugned order dated 23-10-2020 and the proclamation issued under Rule 5(1) in type A (Schedule 1) passed and issued by the Collector Solapur.” 3. The facts which are relevant for deciding the reliefs sought in the above Writ Petition, are in brief set out hereunder : 3.1 On 29th November, 2019, respondent No. 2-State Election Commission published guidelines and procedure for formation of wards and reservation of seats for village panchayats whose tenure was coming to an end between July 2020 and December, 2020. 3.2 The objections and suggestions with regard to formation of wards and reservation of seats were invited by the Tahsildar between 7th February, 2020 to 14th February, 2020, and the objections and suggestions received were forwarded to the Sub-Divisional Officer (‘SDO’) on 20th February, 2020, for hearing. 3.3 The petitioner filed his objection with the SDO on 7th February, 2020. 3.2 The objections and suggestions with regard to formation of wards and reservation of seats were invited by the Tahsildar between 7th February, 2020 to 14th February, 2020, and the objections and suggestions received were forwarded to the Sub-Divisional Officer (‘SDO’) on 20th February, 2020, for hearing. 3.3 The petitioner filed his objection with the SDO on 7th February, 2020. 3.4 The SDO gave a hearing to the petitioner on 29th February, 2020 and rejected his objections on the same day, i.e. on 29th February, 2020, on the ground that the objections raised by him are vague. 3.5 The SDO after hearing the persons who had submitted their objections and suggestions, sent his report/proposal to the Collector on 11th March, 2020, for his final decision on the formation of wards and reservation of seats. 3.6 The petitioner filed an Appeal before the Collector though there is no provision for fling such Appeal. However, the Collector dismissed his Appeal confirming the findings of the SDO, that his objections are vague. 3.7 In the meantime, elections were suspended due to the pandemic. 3.8 The order of suspension of election was revoked on 20th October, 2020 after which the final notification was published on 2nd November, 2020. Thereafter, the State Election Commissioner declared the election programme on 11th December, 2020 and the District Collector was to publish the election programme on 15th December, 2020. As per Schedule ‘A’ to the said programme, nominations were to be filed between 23rd December to 30th December, 2020; Scrutiny of nominations was fixed on 31st December, 2020; Withdrawal of nominations was allowed upto 4th January, 2021 by 3.00 p.m.; Allotment of symbols and declaration of names of candidates were to be provided on 4th January, 2021 after 3.00 p.m.; and the voting was fixed on 15th January, 2021. 3.9 The above Petition was filed by the petitioner before this Court on 12th November, 2020. 4. The Learned Advocate appearing for respondent No. 2 – State Election Commission has submitted that all steps to conduct the election have been taken by the Election Commission. The ballot papers are printed and fixed on the Electronic Voting Machines (‘EVMs’) which are already set up and are kept at a secured venue and will be opened on the day of the election in the presence of all the candidates. 5. The ballot papers are printed and fixed on the Electronic Voting Machines (‘EVMs’) which are already set up and are kept at a secured venue and will be opened on the day of the election in the presence of all the candidates. 5. The Learned Advocate for respondent No. 2 states that the petitioner was allowed to file his objections after which he was given a hearing by SDO and his objections were rejected on the ground that the same were vague, the petitioner thereafter filed an Appeal before the Collector which too has been rejected by the Collector confirming the ground of dismissal by the SDO. The petitioner has thereafter filed the above Writ Petition without joining the State Election Commission as party respondent to the Writ Petition and has also not annexed to the Writ Petition the objections filed by him before the SDO. It is therefore submitted on behalf of respondent No. 2 that the above Writ Petition should not be entertained and should be dismissed. 6. We have enquired from the Advocate for the petitioner as to why the State Election Commission is not joined as party respondent to the above Writ Petition and further as to why the objections filed by the petitioner are not annexed to the Writ Petition though the petitioner contended in the Writ Petition that the objections raised by him have been incorrectly rejected by the SDO and the Collector has erred in confirming the objections of the SDO. The petitioner has no explanation to offer to these queries raised by the Court. However, we allow the Advocate for the petitioner to forthwith amend the Petition and join the State Election Commission as party respondent No. 2 to the Petition. Reverification is dispensed with. 7. Clause 1 of Article 243-K of the Constitution of India pertains to Election to the Panchayats and provides that, “the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commissioner consisting of a State Election Commissioner to be appointed by the Governor.” 8. Article 243-O bars interference by Courts in electoral matters. The same is reproduced hereunder : “Article 243-O. Bar to interference by Courts in electoral matters. Article 243-O bars interference by Courts in electoral matters. The same is reproduced hereunder : “Article 243-O. Bar to interference by Courts in electoral matters. — Notwithstanding anything in this Constitution — (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 9. In the case of Jadhav Shankar Dyandeo and another vs. Collector, Satara and another, 2010(6) Mh.L.J. 109 , the Division Bench of this Court, following the decision of the Supreme Court in State of U. P. vs. Pradhan Sangh Kshettra Samiti, 1995 SCC Suppl. (2) 305, has inter alia held that the delimitation of Panchayat area or the formation of the constituencies in the Panchayat area, as well as allotment of seats to such constituencies cannot be entertained by the Court since the objections were invited, the petitioner had raised objections, hearing was given to them and it is only thereafter that the objections were rejected by the Collector Satara by passing the impugned Order. Paragraph 12 of the said Judgment is relevant and is reproduced hereunder :— “12. … It is therefore evident that the territorial area of a Panchayat is distinct and separate from the revenue limits of the village which also include group of villages. Similarly, Article 243-C deals with compositions of panchayats and Article 243-K deals with Elections to the Panchayats. Article 243-K(1) contemplates the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (Sub-clauses 2, 3, 4 of Article 243-K are not relevant for deciding the issue in question). Article 243-O prohibits interference by the Court in electoral matters and contemplates that notwithstanding anything in this Constitution the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article243-K, shall not be called in question in any Court. Article 243-O prohibits interference by the Court in electoral matters and contemplates that notwithstanding anything in this Constitution the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article243-K, shall not be called in question in any Court. Sub-clause (b) stipulates that no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. It is therefore evident that as per the provisions of Article 243-O(a) once the power exercised by the State Election Commission in relation to delimitation of constituencies or allotment of seats to such constituencies of the Panchayat, such action cannot be called in question in any Court. The issue is no more res integra and is covered by the decision of the Apex Court in case of State of Uttar Pradesh (cited supra). Relevant observations are in paragraph 45 of the said judgment, which reads thus : “(45) WHAT is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the Courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari vs. Delimitation Commission. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes, This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes, This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of section 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any Court of law. There was a very good reason for such a provision because if the orders made under section 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from Court to Court. Although an order under section 8 or section 9 of the Delimitation Commission Act and published under section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10 (4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and section 2(kk), 11-F and 12-BB of the Act in place of section 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31/8/1994.” The plain reading of the above referred observations made by the Apex Court would show that if provisions of Article 243-C, 243-K and 243-O are read together the delimitation of Panchayat area or the formation of the constituencies in the said areas and allotments of seats to the constituencies could be challenged nor the Court can entertain such challenge except on the ground that before delimitation, no objections were invited and no hearing was given, even though this challenge also could not be entertained after the notification for holding the election is issued. The law declared by the Apex Court is loud and clear and prohibits Courts to entertain challenge in view of Article 243-C, 243-K read with 243-O in respect of the above aspects, and therefore the challenge raised by the petitioners pertaining to delimitation of Panchayat area or that of formation of constituency in the said area as well as allotment of seat to such constituencies cannot be entertained by this Court since the objections were invited, petitioners have raised objections, hearing was given to them and it is only thereafter the objections were rejected by the Collector Satara by passing impugned order. The contentions canvassed by the petitioners based on Rule 2(5) of BVP Rules, 1966 as well as section 4 of MLR Code as well as section 2(4) of the BVP Act in view of Article 243-C, Article 243-K and 243-O coupled with the law declared by the Apex Court in State of U. P. (cited supra) is devoid of substance.” 10. In the instant case, the Tahsildar had given an opportunity to all concerned, including the petitioner to file their objections and suggestions with regard to the formation of wards and reservation of seats between 7th February, 2020 to 14th February, 2020. Pursuant thereto, the petitioner filed his objections within the time prescribed. The SDO gave a hearing to the petitioner and rejected his objections on 29th February, 2020. The petitioner thereupon filed an Appeal before the Collector. Pursuant thereto, the petitioner filed his objections within the time prescribed. The SDO gave a hearing to the petitioner and rejected his objections on 29th February, 2020. The petitioner thereupon filed an Appeal before the Collector. Though there is no provision in law to file an Appeal before the Collector from the Order of rejection by the SDO, the Collector entertained the Appeal and dismissed the same by confirming the Order of the SDO that the Appeal filed is vague. Despite the above, the petitioner has filed the present Writ Petition that too without joining the State Election Commission as party respondent to the Petition and without annexing the objections raised by the petitioner before the SDO. The elections are scheduled to be held on 15th January, 2021. In view of the decision of this Court in the case of Jadhav Shankar Dyandeo (supra), which follows the decision of State of U. P. (supra), the above Writ Petition cannot be entertained. The Apex Court in the case of Anugrah Narain Singh and another vs. State of U. P. and others, (1996) 6 SCC 303 (Paragraph 12) held, “Moreover, it is well settled by now that if the election is imminent or well underway, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections.” However, it is clarified that the petitioner can always pursue the remedy provided under section 15 of the Maharashtra Village Panchayat Act, 1959. If the said remedy is pursued, it will be open for the parties to raise all their contentions. The above Writ Petition is accordingly dismissed. Petition dismissed.