{1} wp10[SECTION]4116a.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10[SECTION]41 OF 2016 [ENTITY] w/o Dinesh Pardeshi, Age: 41 years, occ: social work/household, R/o Depo Road, Navjeevan Colony, Vaijapur, Tq. Vaijapur, District Aurangabad Petitioner Versus 1 The [ENTITY], Through its Principal Secretary, Urban Development Department, Mantralaya, Mumbai 2 The [ENTITY], through Its Deputy Secretary, 3 The Collector, Aurangabad District Aurangabad 4 The [ENTITY], through its Chief Executive Officer Respondents And Raafe Hasan s/o Ali Hasan, age: 36 years, Occ: Legal Practitioner, R/o Peerzad Lane, Post: Vaijapur, Tq.Vaijapur, District Aurangabad. Intervener Mr.[ENTITY], Senior Counsel i/by Mr. [ENTITY], advocate for the petitioner Mr. [ENTITY], Special Counsel with Mr. [ENTITY], AGP for Respondents No.1 & 3. Uploaded on - 02/12/2016 Downloaded on - 03/12/2016 01:05:06 {2} wp10[SECTION]4116a.odt Mr. [ENTITY] advocate for Respondent No.2 Mr. [ENTITY] advocate for respondent No.4 Mr. [ENTITY] Senior Counsel i/by Mr.[ENTITY], advocate for intervener CORAM : R.M. BORDE AND [ENTITY], JJ. RESERVED ON: 24th November, 2016 PRONOUNCED ON: 02nd December, 2016. [ENTITY] (Per [ENTITY], J.):
Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2 The [ACT] Bench of the Supreme Court, in the matter of Mohindar Singh Gill Vs. Chief Election Commissioner of New Delhi, 1[SECTION]78 SCC 405, has referred to pervasive philosophy of the democratic elections which [ENTITY] vivified in matchless words:-
" At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount off rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.
If we may add, the little large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by mean 'dressed in little, brief authority'. For 'be you ever so The moral may be stated with telling terseness in the words of [ENTITY]: "Where laws end, tyranny begins". Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed {3} wp10[SECTION]4116a.odt by [ENTITY] (Vivian Grey, BK VI Ch 7):
I repeat . . . that all power is a trust that we are accountable for its exercise - that, from the people and for the people, all springs, and all must exist".
26 Further, the Court in (para 23) observed thus:
"Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. "The right of election is the very essence of the constitution ([ENTITY]). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more. "
3 The provisions relating to conduct and control of elections to Panchayat and Municipalities, grass root level institutions of democracy, find place in [SECTION] respectively of the [ACT]. The power of superintendence, direction and control for preparation of electoral rolls for, and conduct of, all the elections to Panchayats as well as the Municipalities vest in the [ENTITY] Election Commission consisting of [ENTITY] Election Commissioner to be appointed by the Governor in view of [SECTION] of the [ACT]. [SECTION] of the [ACT] provides that subject to the provisions of this constitution, Legislature of a [ENTITY] may, by law, make provisions with respect to all the matters relating to, or in connection with, elections to Panchayats. [SECTION] which relates to election to Municipalities refers to [SECTION] In the matter of A.C. Jose Vs Siven Pillai and others, AIR 1[SECTION]84 SC [SECTION]21, in para No.25 it is observed thus :
"25 To sum up, therefore, the legal and constitutional position as regards conduct of elections is as follows:
(a) when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections.
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by [SECTION].
(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under [SECTION] to give any direction in respect of the conduct of election. "
4 It is thus clear that in the absence of legislation, the Commission is free to pass orders in respect of conduct of elections and wherever there is an Act and express Rules made thereunder, it is not open for the Commission to override the Act and Rules and pass orders and issue directions in disobedience of mandate of the Act and Rules.
5 There cannot be a duel opinion as regards the {5} wp10[SECTION]4116a.odt preposition that in terms of [SECTION] of the [ACT], there is an absolute and complete bar for the Courts in considering any matter relating to the municipal elections of any kind whatsoever after the publication of the notification for holding municipal elections. The bar imposed by [SECTION] is two fold.
(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 [SECTION] shall not be called in question in any Court of law; and (b) No election to any Municipality 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 [ENTITY]. 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 it is allowed to be so, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the election process. In the matter of Anugraha Narain Singh Vs. [ENTITY] of UP and others, 1[SECTION][SECTION]7 1 Mah. L.J. 132 = 1[SECTION][SECTION]6, 6 SCC 303, the Supreme court quashed interim orders passed by the High Court and observed that if the election is imminent or well underway, the Court should not interfere 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. The importance of holding elections at regular intervals cannot be over-emphasized. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies.
{6} wp10[SECTION]4116a.odt 6 It, thus, will have to be concluded that so far as the matters relating to superintendence, direction and control for the preparation of electoral rolls and conduct of elections of the Municipalities are concerned, the power vest in [ENTITY] Election Commission and that the Legislature of the [ENTITY] may by law, make provisions with respect to all the matters relating to or in connection with the elections of the Municipalities. It is also clear that if there is any law made by the [ENTITY] Legislature in place, the [ENTITY] shall have to abide by such law and issue direction within the frame work of law and in no case, direction can be issued in disregard to law framed by the Legislature. There are constraints on the power exercisable by the Court for causing interference in the election matters. At the same time, it has to be ensured that the Government acts in consonance with the law framed by the Legislature relating to conduct of election of the municipalities and does not violate the provisions of such law. At the same time, where the [ENTITY] Election Commission has stepped-in and issued directions in respect of elections to municipalities, it would also not be open for the Government to cause interference in the electoral matters and issue directions contrary to the provisions of law made by the Legislature. Issuance of such directions, contrary to law made by the [ENTITY] Legislature, even after Election Commission has assumed the power of superintendence and control over election, shall have to be construed as the interference by the [ENTITY] Government in the election which is imminent, although in strict sense of terms, the Notification for election has not been issued, as stipulated under form No.I appended to [ACT].
{7} wp10[SECTION]4116a.odt ("The [ACT]" for short).
7 In the instant matter, the petitioner, who is a resident of Vaijapur, Tq. Vijapur and held the office as councillor as well as the President in the past, is raising challenge to the communication issued by the [ENTITY] Government on 28.10.2016 to the [ENTITY] Election Commission, whereby the reservation for the post of President, which was prescribed by draw of lots conducted in consonance with the provisions of the [ACT], in favour of "open women category", has been changed and the office of the President of the Municipal Council has been prescribed for "General category".
8 The last election to the Municipal council Vaijapur was held in December, 2014 and the elections to Municipalities are due in December, 2016. The [ENTITY] has issued an ordinance No.IX of 2016 with a view to amend the [ACT] and Maharashtra Municipalities, Nagar Panchayat and Industrial Township Act, 1[SECTION]65. By virtue of [SECTION] of the amending Act, [SECTION] been inserted, providing for direct elections to the President. In [SECTION] of the [ACT] sub-section (2) has been inserted, providing that the term of the office of the President elected under [SECTION] shall be five years and shall be co-terminus with the term of the council. The [ACT] framed and published in the Official Gazette on 4.10.2016 also provide, apart from other matters relating to conduct of election of the President, for reservation of office of the President and procedure for allotment of reserved seats of different municipal councils.
{8} wp10[SECTION]4116a.odt [SECTION] It is the contention of the petitioner that in view of [SECTION] of the [ACT], a draw of lots for fixing reservation of the offices of Presidents of the Municipal Councils in the [ENTITY] were held on 5.10.2016. It is contended that total 233 posts in the [ENTITY] were put to draw. Out of 233 posts, after prescribing reservation for reserved categories i.e. SC, ST and OBC, 11[SECTION] posts remained. Out of such 11[SECTION] posts, not less than 50% of the posts i.e. 65 are required to be kept reserved for open women category and 64 posts for open general category. Accordingly, the draw was conducted and so far as the post of President of the Municipal Council Vaijapur is concerned, it came to be reserved for open (women) category. Result of the draw was published in various news papers. A communication was also sent to the [ENTITY] Election Commission by the [ENTITY] Government, informing result of the draw and prescription of reservation for various categories. The [ENTITY] Government, however, informed to the [ENTITY] Election Commission on 28.10.2016 to the effect that the draw for prescribing reservation for the post of President was conducted under chairmanship of Minister of [ENTITY] - Urban Development Department on 5.10.2016 at Mantralaya, Mumbai and the list prescribing the reservation for the post of President for various categories has been forwarded to the [ENTITY] Election Commission under the covering letter dated 7.10.2016. It was thereafter noticed by the [ENTITY] Government that there is repetition of the reservation for the post of President of Vaijapur Municipal council in favour of open (women) category and as such, decision has been taken by the [ENTITY] Government to prescribe the post of President of Vaijapur {[SECTION]} wp10[SECTION]4116a.odt Municipal council for open category instead of open (women) category.
10 The petitioner contends that the change, that has been brought about in the reservation prescribed for the post of President of Vaijapur Municipal Council, is violative of the provisions of the Rules framed by the [ENTITY] Government. It is further contended that, it was not open for the [ENTITY] Government to take such decision unilaterally, after results of the draw were declared on 5.10.2016 regarding prescription of the reservation for the post of President and much after the [ENTITY] Election Commission issued direction relating to conduct of election within contemplation of [SECTION] of the [ACT]. It is also contended that it was not open for the [ENTITY] Government to cause interference in the process of election which is imminent.
11 The writ petition was presented on 25.10.2016 and this Court, by order dated 27.10.2016, granted time and adjourned the matter by one week at the request of the [ENTITY] Government with liberty to the petitioner to move before the Vacation Judge. On 03.11.2016, when the matter was moved before the learned Vacation Judge, the Court granted leave to the petitioner to amend the petition and at the request of the Government, with a view to facilitate presentation of the reply, adjourned the matter to 8.11.2016. On the adjourned date i.e. 8.11.2016, when the matter was called out before the learned Vacation Judge, the Assistant Government Pleader, appearing for the [ENTITY], again sought adjournment. It was pointed out by the petitioner that the election programme would be declared on 15.11.2016. The learned Vacation {10} wp10[SECTION]4116a.odt Judge, considering contentions of the petitioner and noticing the illegalities in the matter of prescription of reservation and undue interference by the [ENTITY] Government in the election process, directed the Collector not to declare the programme of the election for electing President of Municipal Council, Vaijapur. The matter has been placed before us on reopening of Courts after Vacation;
and we have heard learned Counsel appearing for respective parties.
12 An affidavit in reply has been presented on behalf of the [ENTITY] by the District Administrative Officer, Aurangabad. Respondent-[ENTITY] has questioned the locus standi of the petitioner to present the petition. It is contended that, since the post of President is prescribed for open category, the petitioner, who is a woman, can very well contest for the post of President from the open category. It is contended that the reservation policy cannot be used as a tool for choosing the opponent from any one category. It is the stand taken by the [ENTITY] Government that the office of the President of the Municipal Council must be reserved in accordance with the Maharashtra Municipal Councils, Nagar Panchayats (President Election) Rules, 1[SECTION]81 (for short, "Rules of 1[SECTION]81"). It is contended that the Office of the President of the Municipal Council shall be allotted by rotation to different Municipal Councils and Nagar Panchayats in the [ENTITY] in view of [SECTION]. It is contended that the policy of reservation has been introduced with a view to avoid reservation in perpetuity. The Office of the President, Municipal Council, Vaijapur was earlier prescribed in favour of open (women) category. It was a just decision of the [ENTITY] to allot the office of the President in favour of open ( category in {11} wp10[SECTION]4116a.odt view of prescription of rotation of seats. It is contended that the arguments advanced by the petitioner that the only mode prescribed for reservation of the seat of the President is by draw of lots and no other mode is permissible, for bringing about change or correction, is incorrect. It is contended that there is no rule governing the rectification of mistake. However, [SECTION] of the [ACT], 1[SECTION]04 mandates that where a power to issue notifications, orders, rules or bylaws is conferred by a [ENTITY] Act, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition (if any) to add, to amend, vary or rescind any notification, orders, rules or bylaws so issued.
13 It is contended that since the office of President of Municipal Council, Vaijapur was prescribed for open (women) category, during the previous term and since there was repetition of reservation for the said category, taking into consideration provisions of Rules of 2016 and with the approval of the Government, change has been brought about in the prescription of reservation for the post of President of Municipal Council, Vaijapur from open (women) category to general category. It is further contended that after the draw of lots prescribing reservation in view of [SECTION], since the Office of the President so reserved and allotted was not notified in the Official Gazette and the change is effected prior to such publication of the Notification in the Official Gazette, it was permissible for the [ENTITY] Government to step in and correct the mistake. It is contended that after rectification of the mistake, the reservation and allotment of the seat has been notified in the Official Gazette. It is contended on {12} wp10[SECTION]4116a.odt behalf of the [ENTITY] that in view of the bar contained in [SECTION], it is impermissible for this Court to cause interference in the electoral matters.
14 Shri [ENTITY], learned Senior Counsel appearing for the intervener, has also reiterated the same defence and has also questioned the locus standi of the petitioner.
15 By virtue of [SECTION] of the [ACT] after [SECTION] of [ACT], [SECTION] substituted which reads as under:-
51A-1A. (1) After the date of commencement of the [ACT] and the [ACT], in respect of the general elections to the Council, subject to the provisions of [SECTION], every Council shall have a President who shall be elected by the persons whose names are included in the municipal voters list prepared under [SECTION].
(2) Every person qualified to be elected as a Councillor under [SECTION] shall be qualified to be elected as a President at an election.
(3) Election of the President shall be held simultaneously with the general elections of the Council and the procedure regarding holding of elections to the Council shall, mutatis mutandis, apply to such election.
(4) If at an election, no President is elected, a fresh election shall be held to elect a President, and if there is a failure to elect a President at the fresh election, such vacancy may, notwithstanding anything {13} wp10[SECTION]4116a.odt contained in this Act, be filled by election by the elected Councillors from amongst themselves.
(5) Any person elected under sub-section ( 4) or (7) shall be deemed to be duly elected at an election under this section.
(6) If, in the election of the President, there is an equality of votes, the result of the election shall be decided by lots to be drawn by the [ENTITY] Election Commissioner or the officer appointed by him for the purpose.
(7) If, during the term of the elected Councillors, there is a vacancy in the office of the President due to any reason, the same procedure as provided in sub-
sections (1) to (6) shall apply and such President shall remain in office only for the remainder of the term, for which his predecessor would have remained in office but for such casual vacancy :
Provided that, if a vacancy occurs, which is within six months prior to the date on which the term of office of the elected Councillors expires, the same shall be filled in by election from amongst the elected Councillors.
(8 ) in case of a dispute regarding election of the President, the provisions of [SECTION] shall, mutatis mutandis, apply.
([SECTION]) The Collector shall convene first general meeting of the Council within twenty-five days from the date on which the name of the President and the elected Councillors is published in the Official Gazette after the general election of the Council and the President.
The nomination of the Councillors under [SECTION] shall be made in the prescribed manner in this meeting.
16 The term of the office of the President elected under [SECTION] been prescribed as five years {14} wp10[SECTION]4116a.odt and the same shall be co-terminus with the term of the municipal council in view of [SECTION] of the Act as incorporated by the amendment Ordinance. The [ACT] have been framed in exercise of powers conferred under [SECTION] read with sub-section (1) and clauses (b), (c), (d), (e), (f),
(g), (h), (i), (j), (k), (l), (m), (n), (o), (p) and (q) of sub-section (2) of section 17 and [SECTION] of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1[SECTION]65. [SECTION] defines "Directly Elected President" means the President who is elected under [SECTION] [SECTION] defines "election" to mean election of President under [SECTION] [SECTION] relates to Reservation of offices of President and the procedure for allotting the reserved seats of different Municipal Councils, which reads thus:
3. Reservation of Offices of President and procedure for allotting the reserved seats of different Municipal Councils -
(1) The [ENTITY] Government shall, by order published in the Official Gazette, reserve the Offices of the President of Municipal Councils in the [ENTITY] for candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women. While determining the number of offices to be so reserved:-
(i) the number of offices to be reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes shall bear; as nearly, as may be, the same proportion to the total number of offices to be filled in the [ENTITY], as the population of the Scheduled Castes or Scheduled Tribes, as the case may be in the Municipal Councils of the [ENTITY] bears to the total population in the Municipal Councils of the [ENTITY] and such offices may be allotted by rotation to different Municipal {15} wp10[SECTION]4116a.odt Councils in the [ENTITY] Explanation :- While calculating the number of Offices, the fraction of one-half or more shall be counted as one-and the fraction of less than one-half, shall be ignored;
(ii) twenty-seven per cent of the offices shall be reserved for the candidates belonging to the Backward Class of citizens and such offices may be allotted by rotation to different Municipal Councils in the [ENTITY];
(iii) not less than one-half of the total number of offices reserved under clauses (i) and (ii) for woman candidates belonging to the Scheduled Castes, Scheduled Tribes or as the case may be, Backward Class or Citizens; and
(iv) not less than one-half (including the number of offices reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the Backward Class of Citizens) of the total number of Offices to be filled in the [ENTITY] shall be reserved for women candidates; and such offices may be allotted by rotation to different Municipal Councils in the [ENTITY]. In determining such figure, a fraction shall be taken into consideration so as to ensure that not less than one-third of the total number of offices of Presidents are reserved for the above categories are reserved for women.
(2) The procedure for allotting reserved seats to different Municipal Councils shall be as follows:-
(i) While allotting the offices of the President, for persons belonging to the Scheduled Castes, Scheduled Tribes and the Backward d Class of citizen (including women belonging to the said categories) the offices of the Presidents, reserved for any of the said categories in the immediately preceding term, shall be excluded.
{16} wp10[SECTION]4116a.odt
(ii) Subject to provisions of clause (i), -
(a) the reservation of Offices of Presidents for candidates belonging to the Scheduled Castes and Scheduled Tribes in the Municipal Councils shall be made with reference to the largest percentage of population of the said categories in the Municipal Councils to the total population of such Municipal Councils, in the descending order:
Provided that, in case where the name of any Municipal Council appears in both the categories that is to say, the Scheduled ig Castes and the Scheduled Tribes, the reservation of the Office of the President for such Municipal Council shall be decided on the basis of higher percentage of the population belonging to either of the said categories and in such case, the next Municipal Council, in that order shall be reserved for the category:
Provided also that in case where the percentage of both the categories is equal, the reservation of such offices shall be decided by drawing lots;
(b) offices reserved for Backward Class of citizens and women shall be allotted by drawing lots and offices may be allotted by rotation to different Municipal Councils in the [ENTITY].
(iii) The offices of the Presidents so reserved and allotted shall be notified in the Official Gazette.
17 [SECTION] relates to Powers of [ENTITY] Election Commission to appoint and deploy the staff of Council which reads thus:-
{17} wp10[SECTION]4116a.odt 6 Powers of state Election Commissioner to appoint and deploy the staff of Council.
The [ENTITY] Election Commissioner shall have the power to appoint or deploy the officers and members of the staff of Council for conduct of election and other matters relating thereto. Such officers and members of staff shall function under the superintendence, direction and control of the [ENTITY] Election Commissioner. "
18 Fixation of various stages of election is, as prescribed under [SECTION]. [SECTION] provides that for the purpose of holding a general election, the [ENTITY] Election Commissioner or the officer authorized by the [ENTITY] Election Commission, shall, as occasion may require, by order in Form I appoint or re-appoint, dates, time and place for all or any of the stages of the election.
1[SECTION] It is the admitted position that there are total 233 seats of the President of Municipal Councils for which the elections are conducted. In view of [SECTION] of the [ACT], the number of offices to be reserved for the candidates belonging to SC and ST are prescribed as 31 and 10 respectively and further in view of [SECTION], [SECTION] cent of the offices prescribed for backward classes of citizens are 63. [SECTION] prescribed that not less than one-half posts including the number of offices reserved for women belonging to SC and ST and backward classes of citizens out of the total number of offices to be filled in the [ENTITY] i.e. 65, shall be reserved for women candidates and such offices may be allotted by rotation to different municipal councils in the [ENTITY]. It is further prescribed that in determining such figure, a fraction shall {18} wp10[SECTION]4116a.odt be taken into consideration so as to ensure that not less than one-
third of the total number of offices of President reserved for the above categories are reserved for women.
20 In view of aforesaid Rules, 16 offices of the President are prescribed for women belonging to SC category out of total 31 offices for the aforesaid category whereas, five offices of the Presidents are prescribed for women belonging to ST category out of total 10 offices, whereas 31 offices of the President are prescribed for OBC women category out of total 63 offices. Out of total 233 offices of the President in the [ENTITY], total 12[SECTION] are prescribed for general category including women. There are 52 offices of the President prescribed for women belonging to reserved category i.e. women belonging to SC, ST or backward classes of citizens. Reservation for women out of total number of offices shall be not less than 50% including the reservation of offices of women belonging to reserved categories. Thus, the number of offices prescribed for women general category were 65, whereas 64 offices were prescribed for general category. The offices of President, reserved for backward classes of citizens and women are allotted by drawing lots in view of [SECTION] of the Rules of 2016. During the draw of lots conducted on 5.10.2016, 65 offices of the President were prescribed for women belonging to open category, whereas 64 offices of the President were prescribed for open category.
21 The office of President, Municipal Council Vaijapur was allotted by drawing lots in favour of open women category. The [ENTITY] Government, however has intervened in the matter and {1[SECTION]} wp10[SECTION]4116a.odt communicated to the [ENTITY] Election Commission on 20.10.2016 that the Office of the President, Vaijapur Municipal Council shall be available for open category instead of open-women category. The decision has been taken by the [ENTITY] Government of its own after draw of lots as prescribed under [SECTION] of the [ACT] was already conducted. Apart from deviation from the procedure, while changing the reservation, the decision is rendered in breach of [SECTION] of the Rules of 2016 framed by the [ENTITY]. It is prescribed that not less than one-half of the total number of offices available in the [ENTITY] shall be reserved for women candidates. The total offices of the President available in the [ENTITY] are 233; whereas in view of prescription of [SECTION], at least 117 offices ought to have been reserved for women category. The decision of the [ENTITY] Government in prescribing the Office of President, Municipal Council for open category instead of open - women category has led to curtailing one seat prescribed for woman category which makes the total seats available in the [ENTITY] for women category to 116 which is less than one half of the total number of offices to be filled in the [ENTITY]. The decision of taking away office of President of Vaijapur Municipal Council, out of reservation prescribed for open - women category and prescribing the said office for open category, has led to breach of [SECTION] of the Rules of 2016 framed by the [ENTITY] Government.
22 It is contended by the petitioner that since a procedure has been prescribed for allotment of offices for backward classes of citizen and women by way of draw of lots, it was not permissible for the [ENTITY] Government to deviate from that procedure and {20} wp10[SECTION]4116a.odt prescribe the office of the President of Municipal Council, Vaijapur for open category instead of open (women) category after draw of lots. Any change, if at all that was required, shall have to be made in observance of the provisions of [SECTION] of the Rules, of 2016.
23 It is the contention of the respondents that Maharashtra Municipal Councils And Nagar Panchayats (President Election) Rules, 1[SECTION]81 shall apply and in view of [SECTION] of the Rules, 1[SECTION]81, the offices of President reserved for Backward Class of citizens and women shall be allotted by drawing lots and offices may be allotted by rotation to different Municipal Councils. The contention of the respondents that Rules framed in the year 1[SECTION]81 shall apply for prescription of reservation to the office of the President, Municipal Councils is devoid of substance.
In this context, reliance is placed by the petitioner on the judgment in the matter of [ENTITY] s/o Govardhansingh Bhadoriya Vs [ENTITY], 2002 (4) Mah.L.J. 531. The issue, in that matter, was as to whether earlier arrangement of reservation, after promulgation of ordinance dated 7.[SECTION].2001 prescribing direct elections to the President of Municipal Council would survive so far as the reservation of the seats is concerned. The Court adopted a view that since the Legislature has power to bring ordinance which proposition is not disputable, the earlier arrangement in respect of prescription of reservation no longer holds good.
{21} wp10[SECTION]4116a.odt 24 It must be noted that before issuance of the Ordinance 2016 providing for direct election to the post of President of the Municipal Council, the President of Municipal Council was elected from amongst the elected councillors of the Municipal Councils in view of [SECTION] of the Act. [SECTION] been incorporated in the [ACT] by virtue of the [ACT]. The rules, prescribing reservation of the office of the President have been framed on 4.10.2016. In view of [SECTION] of the [ACT] "directly elected President"
means the President who is elected under [SECTION], whereas [SECTION] of the rules provides that "election" means election as provided under [SECTION] In the instant matter, we are concerned with elections of President under [SECTION] As such the rules framed by the [ENTITY] Government on 4.10.2016 shall apply. At the relevant time, when the Rules of 1[SECTION]81 were framed, the election to the office of the President was prescribed from amongst the citizens directly. However, the provision prescribing for election of the President, directly from amongst the voters, was deleted and [SECTION] was substituted by amending [ACT] providing that President of Municipal Council be elected by elected councillors from amongst themselves. Rules of 1[SECTION]81 are not framed for the purpose of electing the President under [SECTION] provision has been brought into existence only in 2016. The argument that the Rules of 1[SECTION]81 would apply is thus devoid of any merit. Even otherwise, nothing in the Rules of 1[SECTION]81 shall support the action of the [ENTITY] Government in changing the reservation in respect of office of the President of Vaijapur Municipal Council.
25 It is further contended by the respondents that there is {22} wp10[SECTION]4116a.odt no provision in the Rules of 2016 for rectification of the error and as such the provisions of [SECTION] of the [ACT], 1[SECTION]04 have been invoked which provides that where a power to issue notifications, orders, rules or bylaws is conferred by [ENTITY] Act, then that power includes a power exercisable in the like manner and subject to the like sanction and condition (if any) to add, amend, vary or rescind any notification, orders, rules or bylaws so issued. It must be emphasized that even power exercisable by taking recourse to clause 21 of the [ACT] shall be exercised in the like manner and subject to the like sanction and condition (if any) to add, amend, vary or rescind any notification, orders, rules or bylaws so issued 26 In the instant matter, a procedure has been prescribed for reserving the office of the President in favour of woman category i.e. by draw of lots. If at all any change is to be made, the procedure prescribed under the relevant rules mandating to take recourse of draw of lots must be observed. It also needs to be noted that by virtue of the [ENTITY] action of taking away reservation provided for General (women) category provided for the office of the President of Vaijapur Municipal Council, the [ENTITY] has provided less number of offices i.e. less than 50% in favour of woman category thereby committing breach of [SECTION] of the [ACT].
27 It is further contended that since the office of the President, Municipal Council Vaijapur was prescribed for women general category, during the preceding term i.e. from 2014 to 2016, in view of prescription under the Rules, in respect of allotment of {23} wp10[SECTION]4116a.odt office by rotation, the change has been brought about and the office of the President of the Municipal Council Vaijapur has been prescribed for open category. It is also contended that while drawing lots for open - women category, it was necessary to exclude the reservation which was prescribed for open - women category during the preceding term. It is recorded in the affidavit in reply presented by the respondents that out of total number of Municipal Councils available for open category, there were 13 municipal councils whose offices of President were reserved for women category during the preceding term. Therefore, the chits/slips of those 13 Municipal Councils were required to be kept aside, while drawing lots in order to avoid repetition of reservation. This procedure is carried out during draw of lots itself. It is further stated that instead of 13 chits, 11 chits were inadvertently kept aside during draw of lots. Two municipal councils, for which chits were not kept aside inadvertently, were Vaijapur Municipal Council and Pandharpur Municipal Council.
28 The aforesaid contention of the respondent is clearly in breach of the procedure prescribed for draw of lots under [SECTION](2)
(i) of the Rules of 2016. [SECTION] provides thus:
3 Reservation of offices of President and procedure for allotting the reserved seats of different Municipal Councils-
(2) The procedure for allotting reserved seats to different Municipal Councils shall be as follows:
(ii) While allotting the offices of the President, for persons belonging to the Scheduled Castes, Scheduled Tribes and the Backward Class of citizens (including women belonging to the said categories), {24} wp10[SECTION]4116a.odt the offices of the Presidents reserved for any of the said categories in immediately preceding term, shall be excluded.
The exclusion that is directed under the Rules, in the event of prescription of reservation during immediately preceding year in favour of Scheduled Castes, Scheduled Tribes and backward classes of citizens only, does not apply to open women category. The exclusion at the stage of draw of lots while allotting the office is prescribed in the event of repetition of reservation during immediately preceding term, only as regards SC, ST and backward classes of citizens including women belonging to such categories and not to any other categories including open- women general category. The procedure that has been adopted for excluding 11 municipal councils wherein the office of the President was prescribed for open women category during the preceding term is itself violative of the procedure prescribed under [SECTION] of the Rules of 2016. It was not open for the [ENTITY] Government to exclude the 11 Municipal Councils, wherein the offices of the President, in the preceding term, were prescribed for open women category and as such the whole process of allotment of seats by draw of lots is liable to be vitiated.
2[SECTION] Another aspect which is required to be taken into consideration is that change is effected after the draw of lots was conducted for prescribing reserved seats for SC, ST, OBC and women category on 5.10.2016. The result of draw of lots was published in the news paper on the next date. The [ENTITY] Election Commission was communicated in respect of draw of lots on 7.10.2016. The list of reserved offices of the President was also sent {25} wp10[SECTION]4116a.odt to the [ENTITY] Election Commission along with communication dated 7.10.2016 by the [ENTITY] Government. The [ENTITY] Election Commission acting upon the communication of the [ENTITY] Government in respect of reservation of seats, issued directions within contemplation of [SECTION] of the Rules of 2016.
30 [SECTION] provides that the [ENTITY] Election Commission shall have the power to appoint or deploy the officers and members of the staff of the council for conducting of election and matters relating thereto. Such officers and members shall function under the superintendence, directions and control of the [ENTITY] Election Commission. The [ENTITY] Election Commission issued an order on 7.10.2016 and issued detail instructions within contemplation of [SECTION] of the Rules. The [ENTITY] Election Commission also prescribed the dates for declaration of the programme of election by the Collector and the dates in respect of acceptance of nomination papers as well as the dates for recording of votes. It is thus clear that the [ENTITY] Election Commission had stepped in and taken over the functions of holding elections. It was, therefore, impermissible for the state Government to take steps in respect of changing the reservation of the office of the President of the Municipal Council Vaijapur and inform accordingly to the Election Commission on 20.8.2016 much after issuance of instructions by the [ENTITY] Election Commission in respect of holding of elections to the President of the Municipal Councils in the [ENTITY] on 17.10.2016. Issuance of communication in respect of changing reservation by the [ENTITY], issued on 20.10.2016 itself amounts to interference on the part of the [ENTITY] Government in the matter of elections under the control of [ENTITY] Election Commission and that too after {26} wp10[SECTION]4116a.odt issuance of instructions under [SECTION] of the Rules of 2016 and when the elections were imminent and various dates were prescribed for conducting the process of election by the [ENTITY] Election Commission. As has been observed by the Supreme Court, it is permissible for nobody including the [ENTITY] Government to cause interference in the on-going process of elections. In the instant matter, the interference by the [ENTITY] Government is not with a view to correct the illegality. However, interference itself has an effect of committing breach of the various provisions of the [ACT] governing the elections to the post of President.
31 While justifying the action of changing the reservation prescribed while drawing the lots, it is contended that it was open for the [ENTITY] Government to correct the mistake until the offices of the President reserved and allotted are notified in the Government Gazette. It is pointed out by the special counsel appearing for the [ENTITY] that [SECTION] prescribes that the offices of the President so reserved and allotted, shall be notified in the Official Gazette. It is informed that on 20.10.2016, the communication was issued to the [ENTITY] Election Commission, informing the change of reservation in respect of Office of the President of Municipal Council Vaijapur. It may be true that until such communication is made, the compliance of requirement in respect of publication of reservation of posts of President after draw of lots in the Official Gazette was not made. However, since the result of draw and list of the offices reserved for various categories was also communicated to the [ENTITY] Election Commission on 7.10.2016, the [ENTITY] Election Commission exercised {27} wp10[SECTION]4116a.odt the powers under [SECTION] and issued an order deploying the officers and members of the staff and also prescribed various dates for conducting process of election including the dates for declaration of programme, acceptance of nomination papers and recording of votes. After the [ENTITY] Election Commission issued orders under [SECTION] of the Rules of 2016, in our view, it was not permissible for the [ENTITY] Government to effect any change in the matter of reservation of the offices and that too contrary to the provisions of [SECTION] of the [ACT].
It is vehemently contended by the special counsel appointed for the [ENTITY] Government that in view of [SECTION], there is a bar for interference in the electoral matters and this Court shall refrain from issuing any directions. [SECTION] reads thus:-
243ZG. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this [ACT],
(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 [SECTION] shall not be called in question in any court;
(b) no election to any Municipality 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 [ENTITY].
{28} wp10[SECTION]4116a.odt 33 Relying on judgment in the matter of [ENTITY] of U.P. and others vs Pradhan Sangh Kshetra Samiti and others, AIR 1[SECTION][SECTION]5 SC 1512, it is contended that even challenge to the orders relating to delimitation and reservation of seats cannot be entertained after the process of election is set in motion. Para 46 of the Judgment reads thus:-
"46 What is more objectionable in the approach of the High Court is that although [SECTION] of the [ACT] 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 [SECTION] 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 [ENTITY] v.
Delimitation Commission & Ors. [(1[SECTION]67) 1 SCR 400]. 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 [SECTION] of the [ACT], and that an examination of [SECTION] and [SECTION] of the [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 {2[SECTION]} wp10[SECTION]4116a.odt because if the orders made under [SECTION] and [SECTION] 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] or [SECTION] of the [ACT] and published under [SECTION] of that Act is not part of an Act of Parliament, its effect is the same. [SECTION] of that Act puts such an order in the same position as a law made by the Parliament itself which could only be made by it under [SECTION]. If we read [SECTION], [SECTION] and [SECTION] in place of [SECTION] and [SECTION], [SECTION] and [SECTION] of the Act in place of [SECTION] and [SECTION] of the Delimitation Act, 1[SECTION]50, 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 or 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 31st August, 1[SECTION][SECTION]4."
34 Our attention is invited to a judgment in the matter of Anugrah Narain Singh and anr. Versus [ENTITY] of U.P. and others (1[SECTION][SECTION]6) 6 SCC 303, wherein the decision in the matter of [ENTITY] which is referred to in the matter of [ENTITY] of U.P. and others versus Pradhan Sangh Kshetra Samiti is discussed and elaborated in para No.25 of the judgment in detail which is {30} wp10[SECTION]4116a.odt reproduced thus:
"In this connection, it may be necessary to mention that there is one feature to be found in the [ACT], 1[SECTION]62 which is absent in the [ACT] [SECTION] of the Act of 1[SECTION]62 provided that the Commission shall cause each of its order made under [SECTION] and [SECTION] to be published in the Gazette of India and in the official Gazettes of the [ENTITY] concerned. Upon publication in the Gazette of India every such order shall have the force of law and shall not be called in question in any Court. Because of these specific provisions of the [ACT], 1[SECTION]62 in the case of [ENTITY] v. Delimitation Commission and others, (AIR 1[SECTION]67 SC 66[SECTION]), this Court held that notification of orders passed under [SECTION] and [SECTION] of that Act had the force of law and therefore, could not be assailed in any court of law because of the bar imposed by [SECTION]. The [ACT] of 1[SECTION]5[SECTION], however, merely provides that the draft order of delimitation of municipal areas shall be published in the official Gazette for objections for a period of not less than seven days. The draft order may be altered or modified after hearing the objections filed, if any. Thereupon, it shall become final. It does not lay down that such an order upon reaching finality will have the force of law and shall not be questioned in any court of law. For this reason, it may not be possible to say that such an order made under [SECTION] of the [ACT] has the force of law and is beyond challenge by virtue of [SECTION]. But any such challenge should be made soon after the final order is published. The Election Court constituted under [SECTION] of the [ACT] will not be competent to entertain such an objection. In other words, this ground cannot be said to be comprised in sub-sections (iv) of {31} wp10[SECTION]4116a.odt clause (d) Section 71 of the [ACT]. In the vary nature of things, the Election Court cannot entertain or give any relief on this score. The validity of a final order published under [SECTION] of the [ACT] is beyond the ken of Election Court constituted under [SECTION] of the said Act. "
35 It is thus clear that the Notification of the Orders passed under [SECTION] and [SECTION] of the [ACT] 1[SECTION]62 which was a matter for consideration in [ENTITY]'s matter could not have been assailed since it has a force of law. So far as the U.P.Act of 1[SECTION]5[SECTION] is concerned, the draft order of De- limitation of municipal areas was required to be published in the Official Gazette and the same can be altered or modified after hearing objections filed, if any. The [ACT] of 1[SECTION]5[SECTION] does not provide that upon reaching finality, it will have a force of law and shall not be question in any Court of law. In the instant matter also, the orders relating to reservation of the offices, does not have force of law, nor there is such prescription made under the [ACT]. The issue in the matter of [ENTITY] of U.P. Vs Pradhan Sangh Kshetra Samiti and others is thus distinguishable.
36 Learned Counsel appearing for the petitioner has invited our attention to the judgment in the matter of K. Venkatachalam versus A. Swamickan AIR 1[SECTION][SECTION][SECTION] SC 1723 to contend that the High Court can exercise jurisdiction under [SECTION] and declare that the appellant is not qualified to be member of Legislative Assembly. As has been held in the aforesaid judgment, it is thus contended that in the case, wherein the illegalities are {32} wp10[SECTION]4116a.odt palpable, interference is permissible. It shall be borne in mind that in the instant matter, it is the [ENTITY] Government which has interfered and changed the reservation prescribed for office of the President of Vaijapur Municipal Council after the draw of lots. The [ENTITY] Government is instrumental in creating impediments in the process of election. After it was brought to the notice of the High Court, the learned Single Judge of this Court, during vacation, during admission hearing, mandated the Collector, not to issue Notification for the election. Thus the Notification for election has not been issued by the Collector and the actual process of election has not been set in motion.
37 It is also contended by the petitioner placing reliance on the Supreme Court judgment in the matter of Babaji Kondaji Garad versus Nasik Merchants Co-operative Bank Ltd AIR 1[SECTION]84 SC 1[SECTION]2 that when the statute requires certain things to be done in certain manner, it must be done in that manner alone, unless a contrary indication is found in the statute. It is contended that the change in reservation prescribed after draw of lots at the instance of the [ENTITY] Government is in breach of the Rules and while effecting change, the procedure prescribed under the Rules has been given go by which is contrary to the principle laid down by the Supreme Court in the aforesaid matter.
38 Learned Special Counsel appearing for the [ENTITY] Government as well as intervener have contended that the petitioner does not have locus standi to present the petition. It is contended that since the office of the President is prescribed for {33} wp10[SECTION]4116a.odt open category, petitioner can very well contest the election and there is no impediment for her and no prejudice as such is caused by prescribing change in reservation. Reliance is placed on the judgment in the matter of Jasbhai Motibhai Desai Versus Haji Bashir Ahmed and others 1[SECTION]76 1 SCC 671. In paragraphs No.36 to 38 of the Judgment, it is observed thus:-
"36 It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
37 The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first {34} wp10[SECTION]4116a.odt category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be "persons aggrieved.
38 To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something" ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of the words "persons aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? Or is it a statute dealing with private rights of particular Individuals."
3[SECTION] It is contended that the petitioner cannot be considered as a person aggrieved since it is open for her to contest the elections. It is further contended that the petitioner cannot be permitted to choose her opponent by insisting that the office of the {35} wp10[SECTION]4116a.odt President shall be earmarked for women category. In the instant matter, the petitioner is a woman member and the Office of President was prescribed by draw of lots conducted under [SECTION] of the Rules of 2016 for women category. The object behind prescribing reservation not less than 50% of the total offices in the local authorities in favour of the women is to ensure that the significant part of the population i.e. women shall get adequate representation in the local bodies. It is a matter of common knowledge that during past several decades, the women members seldom got representation over local bodies commensurate with population of women in the society and as such a special provision was required to be made to ensure adequate representation for women members. The illegality, that has been brought to the notice in the instant matter, defeats the very purpose for which prescription has been made under the constitutional provision as well as under the statute requiring reservation of seats for women members. It is, therefore, not prudent to contend that the petitioner, who is a woman member does not have locus standi to insist that reservation in favour of woman category shall be maintained and shall not be disturbed, although change, that has been brought about is in contravention of rules. Arguments advanced by the learned special counsel as well as the counsel for intervenor questioning the locus standi of the petitioner deserve to be rejected.
40 Learned Counsel appearing for the [ENTITY] Election Commission contends that the term of office of the outgoing President comes to an end in December, 2016. For completing the process of election from the date of issuance of Notification by the {36} wp10[SECTION]4116a.odt District Collector till declaration of results approximately 45 days time would be required. Therefore, directions are solicited in respect of intervening period between 28.12.2016 i.e. the last date of office of the outgoing President until assumption of Office by the newly elected President.
41 It is contended by the learned Counsel appearing for the [ENTITY] Election Commission that in view of the judgment of the Supreme Court in the matter of [ENTITY] & others Vs. Jalgaon Municipal Council & others, (2003) [SECTION] SCC 731, an appropriate care can be taken by issuing directions in respect of hiatus occurring as a result of expiration of period of outgoing President on 28.12.2016 and installation of the President in office by virtue of the elections, those would be held immediately on disposal of the instant petition, by directing appointment of an Administrator for a short duration. It would be open for the [ENTITY] Government to appoint an Administrator for intervening period between 28.12.2016 i.e. the last date in office of the outgoing President till assumption of newly elected President.
42 For the reasons recorded above, writ petition deserves to be allowed and same is accordingly allowed. The orders issued and communicated to the [ENTITY] Election Commission by respondent No.1 [ENTITY] on 20.10.2016, prescribing the Office of the President of Vaijapur Municipal Council for open category instead of open - women category, are quashed. Reservation prescribed in respect of office of the President of Vaijapur Municipal Council, by draw of lots and communicated to the [ENTITY] Election Commission by respondent No.1 [ENTITY] on 7.10.2016, shall be maintained and {37} wp10[SECTION]4116a.odt further process of election shall be undertaken forthwith.
43 Rule is accordingly made absolute.
44 There shall be no order as to costs.
[CASE NUMBER] does not survive and stand disposed of.
JUDGE ([ENTITY]) (R.M.BORDE) JUDGE vbd