wp11073.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 11073 OF 2010 Jayashree w/o Nanasaheb Shendre .. PETITIONER VERSUS The State of Maharashtra & others .. RESPONDENTS Mr. R.R. Mantri, advocate instructed by Mr. A.A. Mukhedkar, advocate for the petitioner. Mr. K.G. Patil, AGP for the State. Mr. S.T. Shelke, advocate for respondent no. 2. ===== CORAM : B.R. GAVAI & R.M. BORDE, JJ. DATE : 8 th DECEMBER, 2010 PER COURT : 1 By way of present petition the petitioner challenges action on behalf of respondent nos. 2 and 3 in convening the meeting for electing Sarpanch of Gram Panchayat, without holding the election for the post of member, which fell vacant on account of unfortunate death of petitioner’s husband. 2 In the general election to the Gram Panchayat Pangardharwadi wp11073.10 2 which came to be held in 2007, two seats were reserved for candidates belonging to OBC category. From ward no. 1, the candidate who was elected against said post met with an unfortunate death. Subsequently, husband of the petitioner, who was elected from ward no. 2 also died on 13 th September, 2010. Husband of the petitioner was also elected as Sarpanch of said Gram Panchayat which post was reserved for OBC category. 3 After death of petitioner’s husband, respondent no. 3 has notified the program for electing Sarpanch and as per the program, the meeting is to be held on 9 th December, 2010. Being aggrieved by the said notice, the petitioner has filed present petition. 4 Mr. Mantri, learned counsel appearing on behalf of the petitioner, instructed by Mr. Mukhedkar, learned counsel for the petitioner states that in view of section 10(1) of the Bombay Village Panchayat Act, 1958, the Election Commissioner is responsible to hold the election in fair and democratic manner. It is submitted that since the post of Sarpanch is reserved for OBC category, now there is only one person who is eligible from that category and as such this situation has given a wind fall to the intervener. It is further submitted by the petitioner that the petitioner is wp11073.10 3 entitled to be elected as member of the Gram Panchayat for a seat which has fallen vacant on account of death of her husband and, after her election, she is also entitled to be elected as Sarpanch. It is further submitted that on account of the election program which is notified for election of Sarpanch, the valuable right of the petitioner to be elected as Sarpanch is being deprived. 5 It will be relevant to refer to section 10(4) of the Bombay Village Panchayat Act, 1958. 10 Constitution of Panchayats :- (4) Notwithstanding anything in sub-section (1) where two-thirds or more of the total number of members required to be elected [under sub-clause (a) of sub- section (1)] are elected, failure to elect the remaining members shall not affect constitution of the Panchayat. . It is thus clear to state that wherever 2/3 rd of the total number of members are elected, the Gram Panchayat is duly constituted. When a Gram Panchayat is duly constituted, there can be no hurdle in holding the election for the post of Sarpanch of the Gram Panchayat. Out of 9 members, 8 are occupying the office as members and as such, requirement under section 10(4) of the Act is satisfied. wp11073.10 4 6 Insofar as contention of the petitioner that this situation has given a wind fall to the intervener is concerned, in the absence of any specific rule which prohibits the sole member from reserved category to get elected unopposed, to the post of Sarpanch, the petitioner cannot be heard to have any grievance. In a given case post may be reserved for e.g. OBC woman and there could be only one candidate elected from that category. In that situation, the sole member would occupy the post of Sarpanch. 7 Insofar as contention regarding valuable right of the petitioner to get elected as Sarpanch is concerned, it is by now a settled law that right to contest is neither a fundamental right nor a common law right but is purely a statutory right. Apart from that, the petitioner has even to pass the first hurdle. She is yet to be elected as a member of Gram Panchayat. 8 In that view of the matter, no case is made for interference. Petition stands dismissed. ( R. M. BORDE ) ( B. R. GAVAI ) JUDGE JUDGE dyb wp11073.10 5 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. OF 2010 IN WRIT PETITION NO. 11073 OF 2010 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : B.R. GAVAI & R.M. BORDE, JJ. DATE : 8 th DECEMBER, 2010. . This is an application for intervention. In view of dismissal of the petition, application does not survive hence stands disposed of. ( R.M. BORDE) ( B.R. GAVAI) JUDGE JUDGE dyb