1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1234 OF 2010 Venkatesh Yadavrao Shinde, R/o-Satara, Taluka & District-Aurangabad. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through Secretary, Department of Urban Development, Mantralaya, Mumbai-32, 2) The Election Commission, Through Chief Election Commissioner, Mumbai, 3) The Collector, Aurangabad, 4) The Tahsildar, Aurangabad, 5) The Municipal Corporation, Aurangabad, Through The Commissioner, Municipal Corporation, Aurangabad. 6) Gram Panchayat, Satara, Village Satara, Tq. & Dist-Aurangabad. ...RESPONDENTS. 2 ... Mr.D.P. Palodkar Advocate for Petitioner. Mr.N.B. Khandare, Government Pleader with Mr. V.D. Godbharle, A.G.P. for Respondent Nos. 1, 3 and 4. Mr.S.T. Shelke Advocate for Respondent No.2. Mr.Rajendra Deshmukh Advocate for Respondent No.5. ... CORAM: A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 26TH FEBRUARY, 2010. PER COURT : 1. Heard learned counsel for the parties. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, the matter is taken up for final hearing at the stage of admission itself. 2. By this Petition under Article 226 of the Constitution of India, it is prayed that the delimitation (Ward formation) of Aurangabad Municipal Corporation for the General Elections to be held in the year 2010 as published in the Notification dated 2nd February, 2010 be quashed 3 and set aside. It is further prayed that the Respondent No.2 be restrained from holding elections of Municipal Corporation of Aurangabad in respect of area covered by Gut Nos. 28 to 44 and 46 to 75 of Village Satara, Tq. and Dist- Aurangabad unless and until the question of inclusion of that area in Municipal Corporation of Aurangabad or village Panchayat Satara is decided. It is further prayed that the Respondent No.1 be directed to decide the issue of inclusion of area of Gut Nos. 28 to 44 and 46 to 75 of village Satara, Tq. & Dist-Aurangabad forthwith either in the Municipal limits of Aurangabad Municipal Corporation or the limits of village Panchayat, Satara and until such decision is taken by the Respondent No.1, the Respondent No.2 be restrained from holding the elections of Aurangabad Municipal Corporation. 3. These reliefs are claimed on the assertion that until recently the State Government as well as the State Election Commission has always 4 considered the area covered by Gut Nos. 28 to 44 and 46 to 75 as falling under village Panchayat, Satara. That position is reinforced on account of the fact that in the elections to constitute the village Panchayat Satara held as recently as in the year 2007, the residents of Gut Nos. 28 to 44 and 46 to 75 of village Satara were included in the voters list to elect the members of village Panchayat thereof. There is no dispute on this factual assertion made by the Petitioner. The Respondents, however, submit that the Aurangabad Municipal Corporation has always treated the area covered under Gut Nos. 28 to 44 and 46 to 75 of village Satara to be part of Municipal Corporation limits. To support this position, reliance is placed on the development plan, which shows the doted line to indicate Municipal Corporation limits around the Gut Nos. 28 to 44 and 46 to 75 situated at village Satara as part of the Corporation limits. 4. This controversy, however, cannot be addressed 5 on the basis of the development plan which is pressed into service. Whether particular area is part of Corporation limits or otherwise, can be answered only on the basis of the Notification issued by the State Government in that behalf. It is admitted position that there is no Notification available either with the Corporation or with the State Government, which would suggest that Gut Nos. 28 to 44 and 46 to 75 of village Satara were part of the then Municipal Council Aurangabad or for that matter, the Municipal Corporation, Aurangabad. The limits of the then Municipal Council Aurangabad are deemed to be included in the limits of Municipal Corporation, Aurangabad being part of Schedule-I of the Notification. It is not in dispute that Satara village and more particularly Gut Nos. 28 to 44 and 46 to 75 situated at village Satara are not mentioned in Schedule -II of the said Notification. 5. As aforesaid, neither the Corporation nor the State Government is in a position to produce 6 Notification so as to indicate that the above mentioned Gut Numbers of village Satara formed part and parcel of limits of the then Municipal Council, Aurangabad, which in turn would be Schedule-I of the Notification constituting the Municipal Corporation, Aurangabad. In absence of such Notification, it is not possible to assume that the said area was covered within the Municipal limits of Corporation as such. There can be no presumption of that fact. That fact has to be established from the factum of issuance of Notification under Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 by the State Government, so as to include Gut Nos. 28 to 44 and 46 to 75 of village Satara either as part of the then Municipal Council, Aurangabad or the Aurangabad Municipal Corporation by incorporating it in Schedule-II. 6. Notably, as mentioned earlier, the residents of the above mentioned area are already included in the voters list of village Panchayat of Satara, 7 which presupposes that the said area continues to form part of village Panchayat, Satara. Indubitably, there can be no two planning authorities for the same area. In other words, Gut Nos. 28 to 44 and 46 to 75 of village Satara cannot be subjected to planning authority of village Panchayat as well as of Municipal Corporation, Aurangabad. Even for that reason, it is not possible to countenance the stand taken on behalf of the Respondents that in absence of Notification to include above mentioned Gut Numbers of village Satara to be part of Muncipal Corporation limits, the Court ought to assume that the same form part of the Municipal Corporation limits. As a matter of fact, the controversy in this behalf has been raised as back as in the year 2005 and which is subject matter of Writ Petition No.1948 of 2005. Notwithstanding the pendency of the said Writ Petition, the State Government has not thought it appropriate to rectify the anomaly so far. The fact that three elections of Corporation have been conducted in the past and 8 that the above mentioned Gut Numbers were included for the purpose of said elections, does not take the matter any further. 7. Considering the above, it necessarily follows that the area bearing Gut Nos. 28 to 44 and 46 to 75 of village Satara continue to form part of village Panchayat, Satara. Therefore, the same cannot be included or treated as falling within the Municipal Corporation limits. For that reason, the residents of that area cannot be voters or allowed to participate in the ensuing general elections of the Corporation to be held in April, 2010. However, in the event the State Government were to take corrective and remedial measures as may be advised, to include the said Gut Numbers situated at village Satara so as to constitute part and parcel of Corporation limits before the publication of Final Voters List, only then it will be possible for the residents of that area to participate in the ensuing general elections of the Corporation. 9 8. We are not inclined to accept the wider relief claimed by the Petitioner to interdict the entire general election process to be held in April, 2010 or for that matter in respect of Ward Nos. 88, 96 and 98, in which the said Gut Numbers of village Satara are found to be overlapping. Instead, we would direct that in the event the State Government issues any Notification in near future before the finalization and publication of the final voters list, so as to include Gut Nos. 28 to 44 and 46 to 75 of village Satara to form part of the Municipal Corporation limits, in that case the names of the eligible persons who are residents of the said area - whose names are already included in the draft voters list, may be included in the final voters list, subject to other objections if any. 9. We are informed by the learned Government Pleader that the State Government is taking appropriate measures to issue Notification to 10 address the above anomaly, which is likely to be issued by the end of the next week. We accept the assurance given by the State in this behalf. In that case, as mentioned above, the names of eligible voters from the above mentioned Gut Numbers of village Satara can be included in the final voters list, provided the notification is issued before the publication of final voters list. In the event such Notification is issued, it is possible that the question raised in the pending Writ Petition No. 1948 of 2005 and Writ Petition No.5148 of 2007, to that extent would stand answered. 10. Writ Petition is disposed of accordingly. Rule is made absolute on the above terms. . Authenticated copy of this order be supplied to the counsel for the Election Commission. [S.S. SHINDE, J.] [A.M. KHANWILKAR, J.] asb/FEB10/wp1234.10