- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NOS.1249/2010 & 1471/2010 WRIT PETITION NO.1249/2010 1] Shri Ramesh s/o Kautikrao Idhate, age 33 yrs., occu.social service, r/o N-11, Plot No.18, Sudarshan Nagar, HUDCO, Aurangabad. 2] Ravindra s/o Laxman Gange, age 34 yrs., occu.social service, Elected Corporator from Ward No.67, r/o Nathnagar, Behind Sindhi Colony, Aurangabad. 3] Santosh s/o Sarjerao Khendke, age 36 yrs., occu.social service Elected Corporator r/o Maratha Nivas, Pundliknagar Road, Plot No.3, Aurangabad. ...Petitioners.. Versus 1] The State of Maharashtra, through the Secretary, Urban Development Department, Mantralaya, Mumbai. - 2 - 2] The State Election Commission, Maharashtra State, Mumbai. Through its Secretary. 3] The Municipal Corporation, Aurangabad. Through its Commissioner. ...Respondents... ..... Shri V.D. Sapkal, Advocate for petitioners. Shri V.D. Godbharle, AGP for respondent no.1. Shri S.T. Shelke, Advocate for respondent no.2. Shri R.S. Deshmukh, Advocate for respondent no.3. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= WRIT PETITION NO.1471/2010 1] Dr.Bhagwat s/o Kisanrao Karad, age 55 yrs., occu.Medical Practitioner, r/o Karad Multi Specialty Hospital, Samtanagar, Kranti Chowk, Aurangabad. 2] Kachru s/o Chaganrao Ghodke, age 33 yrs., occu.business, r/o Samta Nagar, Near Santoshi Mata Mandir, Aurangabad. Dist.Aurangabad. 3] Sanjay s/o Sugriv Redlon, age 28 yrs., occu.business, r/o Chuna Bhatti, Gandhi Nagar, Aurangabad. ...Petitioners... Versus - 3 - 1] The State of Maharashtra, through the Secretary, Urban Development Department, Mantralaya, Mumbai. 2] Aurangabad Municipal Corporation, Aurangabad. Through its Commissioner. 3] The State Election Commission, Maharashtra New Administrative Building, In front of Mantralaya, Madam Kama Road, Mumbai-32. Through its Commissioner. ...Respondents... ..... Shri Pradeep Deshmukh, Advocate h/f Shri D.D. Kulkarni, Advocate for petitioners. Shri V.D. Godbharle, A.G.P. for respondent no.1. Shri R.S. Deshmukh, Advocate for respondent no.2. Shri S.T. Shelke, Advocate for respondent no.3. CORAM: A.M. KHANWILKAR & S.S. SHINDE, JJ. DATE: 25.02.2010 PER COURT: 1] Heard learned counsel for the parties. 2] These petitions have been heard along with other writ petitions listed before us being Writ Petition Nos.1168/2010, 1686/2010, 1241/2010 and 1590/2010, - 4 - which have been disposed of today by separate orders. 3] In Writ Petition No.1471/2010, the grievance is to the notification dated 2.2.1010 to the extent of reservation of seats declared in respect of Ward Nos.62 and 38 in particular and all other wards in general. In Writ Petition No.1249/2010, the petitioners have prayed for quashing of result-sheet dated 15.12.2009 prepared by the respondent nos.2 & 3 by drawing lots on the ground that the procedure followed in drawing of lots to reserve the concerned wards was contrary to the orders passed by the State Election Commission dated 10.5.2009 and 3.5.2005 as well as Section 5(3) of the Bombay Provincial Municipal Corporations Act, 1949. 4] The grievance in these matters is that the limits of the Corporation have been recently extended in the year 2007 whereby certain new areas have been added thereto. On account of addition of new areas, it was obligatory on the part of the State Election Commission to redraw all the wards of the Corporation and treat the present election as first general election of the Corporation. Treating the ensuing elections as the first general elections of the Corporation, the authorities were obliged to comply with the directions issued by the State Election Commission, in the first place to form wards and only thereafter proceed with the draw of lots for reservation. Further, the reservation of wards will have to abide by guideline No.21 of the directions issued by the State Election Commission on 3.5.2005 and not by taking recourse to rotation. - 5 - 5] The above arguments will have to be stated to be rejected. As a matter of fact, it is noticed that the arguments are already answered by the decisions of this Court. We will advert to those decisions a little later. In the first place, the assumption on which the argument proceeds that the ensuing elections will be first general elections of the Corporation, is devoid of merits. The first general election of the Corporation was held soon after the constitution of the Corporation in the year 1982. Adding of new areas to the limits of the Corporation does not mean that the elections to be held thereafter can be treated as first general election of the Corporation as such. No such provision has been brought to our notice. There is no provision in the Act or the Rules or for that matter in the Constitution of India which would support this contention of the petitioners. Indeed, reliance was placed on the guideline issued by the State Election Commission dated 3.5.2005. However, in our opinion, the said guideline would impliedly stand overruled on account of the exposition of Division Bench of our High Court in the case of Prashant Bansilal Bamb V/s State of Maharashtra & others reported in 2007 (4) Maharashtra Law Journal, 341. In that case, the argument, which is now canvassed by the petitioners was specifically taken by the State Election Commission and is the basis on which guidelines have been issued by the State Election Commission dated 3.5.2005. That can be noticed from para 4 of the reported decision. That contention has been rejected by our High Court in para 19 after adverting to the provisions in the Constitution of India and the decisions of the Apex Court. In other words, we find no merits in the argument that the ensuing - 6 - elections would be the first general elections of the Corporation on account of the fortuitous situation which has arisen due to addition of new villages to the limits of the Corporation area. 6] The next argument was that the authorities were obliged to abide by the direction contained in Clause 10 of the guidelines issued by the State Election Commission dated 10.7.2009. As per the said guidelines, the authorities were obliged to first form final wards and only thereafter proceed with the draw of lots or reservation of the concerned wards. Even this aspect has been directly answered by the decision of Division Bench of our High Court in the case of Narendra Kulkarni V/s State of Maharashtra & others reported in 2009 (2) Maharashtra Law Journal, 689. This Court has held that there was no provision in the Act or Rules, which would prohibit formation of wards and reservation simultaneously. According to the learned counsel for the petitioners, this decision will be of no avail as now specific directions have been issued by the State Election Commission in the shape of Clause 10 of Guidelines dated 10.7.2009. We find it difficult to accept this argument. The directions can not be said to be mandatory in nature. In any case, the directions are not to prohibit formation of wards and reservation simultaneously as such. It is only an enabling provision. Unless the petitioners are able to show as to what is the prejudice caused in respect of any specific wards, which have been reserved simultaneously along with formation of wards, it is not possible to appreciate the grievance of the petitioners. In any case, so long as there is no express prohibition either in the provisions of the Act or Rules or any - 7 - Constitutional provision in that behalf, which prohibits undertaking of exercise of formation of wards and reservation simultaneously, we see no reason why recourse taken by the State Election Commission for the ensuing elections should be taken exception to or can be faulted with. 7] The next argument canvassed before us is essentially the fall out of the first argument that it is the first general election of the Corporation. Since we have already rejected that contention, the question of examining the argument of the petitioners that in terms of proviso contained in Clause 22 of the Guidelines dated 3.5.2005, the authorities are obliged to follow the norms prescribed in Clause 21 of the same guidelines for providing reservation and to conduct elections of the Municipal Corporation on that basis. In the circumstances, the grievance made by the petitioners that reservation by rotation cannot be resorted to is devoid of any substance. In our view, as per the provisions of Article 243 D of the Constitution of India as well as Section 5 A (1)(b) of the Act, the Commission has no option but to provide reservation by rotation. 8] The last argument canvassed before us is that the objections now taken before this Court were specifically urged before the State Election Commission, which have been rejected by the Commission without recording any reasons. Ordinarily, on accepting this plea, we would have set aside the order of the State Election Commission and relegated the petitioners before the State Election Commission for reconsideration of their objections and to record reasons for - 8 - rejection thereof. However, since the petitioners called upon us to examine the grievance made by them on merits in this Court as they were apprehensive that the notification for commencement of election process is likely to be issued shortly in which case the bar of exercise of writ jurisdiction would operate, we had no option but to examine the grievance of the petitioners on merits in this Court itself. In the circumstances, even if there is substance in the grievance of the petitioners that the order of the State Election Commission can not be sustained for want of reasons for rejection of the petitioners objections, even then, no fruitful purpose would be served by showing any indulgence to the petitioners in this behalf. 9] Accordingly, both these petitions should fail. The same are dismissed. (S.S. Shinde, J.) (A.M. Khanwilkar, J.) ndk/c252101