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Sopan Kishanrao Narwade & Another v/s State of Maharashtra, Through its Principal Secretary, Rural Development Department, Mantralaya, Mumbai – 32 & Others


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    Writ Petition (ST) No. 96781 of 2020 with Interim Application (ST) No. 97548 of 2020

    Decided On, 12 January 2021

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA & THE HONOURABLE MR. JUSTICE VINAY JOSHI

    For the Petitioners: P.B. Gujar, Advocate. For the Respondents: R.M. Shinde, AGP, S.B. Shetye alongwith Irfan Shaikh, Sarika Shetye, Advocates. For the Intervenor: Sachin R. Pawar, Advocate.



Judgment Text

Oral Judgment: (S.J. Kathawalla, J.)1. By the above Writ Petition the Petitioners seek to challenge the formation of wards of Graampanchayat Khandale, Taluka - Shirur, District - Pune, whose elections are scheduled to be held on 15th January, 2021. In other words the Petition challenges the delimitation of Panchayat area/constituencies determined by the authorities - (i.e.) Respondent Nos.2 to 6.2. The reliefs sought in the above Writ Petition are as follows :“(b) By an Order of this Hon'ble Court the writ of Certiorari or any other writ, order or directions in the like nature, this Hon'ble Court may be pleased to quash and set aside the final notification published by the authorities for the formation of wards of the Grampanchayat Khandale, Taluka - Shirur, District Pune, for the general elections of 2020 and for that purpose issue necessary orders.(c) By issuing writ of Mandamus or any other writ, order or directions in the like nature, this Hon'ble Court may be pleased to quash and set aside Order dated 09/11/2020 passed by the Respondent No.4 / Sub Divisional Officer, Pune thereby rejecting the Objections dated 12/03/2020 raised by the Petitioners of directing the Respondent authorities to revise the final notification thereby changing the formation of wards of the Grampanchayat Khandale, Taluka - Shirur, District - Pune and for that purpose issue necessary orders.”3. The facts which are relevant for deciding the reliefs sought in the above Writ Petition, are briefly 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 thereafter forwarded to the Sub-Divisional Officer (‘SDO’) on 20th February, 2020 for hearing.3.3 On 29th February, 2020, the SDO gave hearing to the persons who had submitted their objections and suggestions and sent his report/proposal to the Collector on 11th March, 2020, for his final decision on the formation of wards and reservation of seats.3.4 The Petitioners had admittedly not fled any objection with the SDO during the prescribed period i.e. between 7th February, 2020 to 14th February, 2020. However, on 6th March, 2020, the Petitioners gave a complaint to the Deputy Chief Executive Officer (‘DCEO’) alleging therein that though Petitioner No. 1 was the Sarpanch of the village at the relevant time, he was not informed about the alleged meeting of the Gramsabha held on 30th January, 2020 ; in an enquiry made by Petitioner No. 1 in the first week of February, 2020 with the Tahsildar as to whether any steps were taken / being taken with regard to the ward formation in Grampanchayat Chale, Dist. Solapur, the response received by him was in the negative ; however in March, 2020, the Petitioner No.1 received information that there was in fact a change in the ward formation and shifting of voters from Ward-1 to Ward-3 and also that the meeting of the Gramsabha was held on 30th January, 2020. According to the Petitioners, upon receipt of the Petitioner’s complaint, the DCEO forwarded the same to the Block Development Officer (‘BDO’) on 9th March, 2020 and required him to make enquiry with regard to the Gramsabha Meeting held on 30th January, 2020, which according to the Petitioners was illegal. On 12th March, 2020, the Petitioners fled their objections along with the signatures of 75% affected voters with the Collector along with an application seeking condonation of delay.3.5 In the meantime, elections were suspended due to the pandemic.3.6 The Order of suspension of election was revoked on 20th September, 2020.3.7 On 25th October, 2020, the Petitioners fled their written objections with the Office of the Collector.3.8 On 26th October, 2020 the Sub Divisional Officer submitted his report stating that though there is substance in the complaint of the Petitioners i.e. even according to him there should be no change in the formation of wards, however since the objections were not raised in time by the Petitioners i.e. on or before 14th February, 2020, cognizance cannot be taken.3.9 The final notification was published by the Collector on 2nd November, 2020 by which the subject ward formation came into force.3.10 On 9th November, 2020 the Sub Divisional Officer by his second report rejected the objections raised by the Petitioner No.2 confirming that a Meeting of the Gramsabha was held on 30th January, 2020, the same was given wide publicity i.e. announcements by beating of drums and pasting the notice on village ‘Chavdi’, and in the said Meeting the issue of ward formation was taken up. The SDO also rejected the Petitioners’ objections on the ground that the said objections were not fled within the prescribed period.3.11 Thereafter, the State Election Commission declared the Election Program on 11th December, 2020 and the District Collector was to publish the Election Program on 15th December, 2020. As per Schedule ‘A’ to the said Program, nominations were to be fled 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 fxed on 15th January, 2021.3.12 The Petitioners fled the above Writ Petition on 25th November, 2020, which is numbered on 1st December, 2020 seeking reliefs, set out in paragraph 2 hereinabove.4. The Learned Advocate for the Petitioners has reiterated before us what is stated hereinabove.5. The Learned Advocate appearing for Respondent No.2 – State Election Commission has drawn our attention to the Affidavit fled by the Respondent No. 2 wherein the allegations made by the Petitioners have been denied and disputed. He has submitted that the Petitioners have made allegations about them not being made aware of the Meeting of the Gramsabha on 30th January, 2020 and them being informed by the Tahsildar in the first week of February, 2020 that there is no formation of wards in the Grampanchayat Khandale, Taluka Shirur, Dist. Pune, are false and made only to cover up the delay on their part in fling objections with the SDO within the prescribed period. It is submitted that the Petitioners’ grievance was referred to the SDO, who submitted his Report dated 26th October, 2020 to the Collector. However, the Collector proceeded to publish the final Notification on 2nd November, 2020. The Learned Advocate for Respondent No. 2 further 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.6. Clause 1 of Article 243K 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.”7. 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 243K, 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.”8. In the case of Jadhav Shankar Dyandeo and another v. Collector, Satara and another (2010 (6) Mh. L.J.), the Division Bench of this Court following the decision of the Supreme Court in State of Uttar Pradesh 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 Petitioners 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. 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 v. 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. 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 S. 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 S. 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 S.2(kk), 11-F and 12-BB of the Act in place of S. 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. 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 Uttar Pradesh (cited supra) is devoid of substance.”9. In the instant case, the Tahsildar had given an opportunity to all concerned, including the Petitioners, to fle their objections and suggestions with regard to the formation of wards in Grampanchayat Chale, Taluka Pandharpur, Dist. Solapur, between 7th February, 2020 to 14th February, 2020. The Petitioners failed to file their objections. Instead, the Petitioners fled a Complaint on 6th March, 2020 alleging that they were not informed about the Meeting of the Gramsabha held on 30th January, 2020 and that in the first week of February, 2020, upon an enquiry being made with the Tahsildar about the formation of wards, they were informed that there is no change in the ward formation. Though the Petitioners have not stated what was the reason for them to make an enquiry with the Tahsildar in February, 2020, the fact remains that these are all disputed questions of facts and cannot be decided in exercise of jurisdiction under Article 226 of the Constitution of India. However, it is pertinent to note that though the Petitioners were later given an opportunity of being heard by the SDO, which they availed of, and though it is true that the SDO in his Report dated 26th October, 2020 stated that in his view the wards should not have been changed, (i.e. he supported the view of the Petitioners) but rejected the objections of the Petitioners on the ground that the objections were not fled on or before the prescribed period i.e. between 7th February, 2020 and 14th February, 2020, the view of the SDO is not binding on the Collector and the Collector has proceeded to publish his final Notification on 2nd November, 2020, interalia accepting the subject ward formation.10. The submission of the Petitioners that the SDO again rejected the Petitioners’ objections, vide his Report dated 9th November, 2020, only on the ground of delay in fling the objections, is also incorrect. A perusal of the entire Report shows t

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hat the SDO has not accepted the allegations / contentions of the Petitioners with regard to them not being informed about the Meeting of the Gramsabha held on 30th January, 2020 and has in fact stated in his Report that on 30th January, 2020, the Meeting of the Gramsabha was infact held with regard to the 2020 election and the issue of ward formation was taken up at the said Meeting. He has further stated in his Report that the Tahsildar had informed the entire village about the said Meeting by beating of drums and had pasted a copy of the notice on the village ‘chavdi’. The SDO has thereafter proceeded to also record in his Report that the Petitioners were required to submit their objections by 14th February, 2020, which they have failed to do.11. In the above circumstance, in view of the decision of this Court in the case of Jadhav Shankar Dyandeo (supra), which follows the decision of the Apex Court in State of Uttar Pradesh (supra), the grievance raised by the Petitioners cannot be entertained in the present Writ Petition. The Apex Court in the case of Anugrah Narain Singh and another v. 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 under way, 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 Petitioners can always pursue the remedy provided under Section 15 of the Maharashtra Village Panchayats 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. In view of this Order, the question of granting interim reliefs does not arise and the same is disposed of.
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