ARUN S/O SHANKAR DOKHE AND ANR Vs. STATE OF MAHARASHTRA AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Special Leave Petition (Civil), 2879 of 2017, Judgment Date: May 04, 2017
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.2879 of 2017
Arun S/o Shankar Dokhe & Another …. Petitioners
Versus
State of Maharashtra & Others ....Respondents
J U D G M E N T
A.M.KHANWILKAR, J.
This Special Leave Petition emanates from the judgment and order dated
16.01.2017 passed by the High Court of Bombay at Aurangabad in Writ
Petition No.11214 of 2016. The said writ petition was filed for the
following reliefs:
“18. The petitioners therefore pray that your lordship will be pleased to:
Call for record and proceedings of the case.
Hold and declare that, the impugned order dated 08.11.2016 passed by
respondent No.3 Divisional Commissioner, Nashik Division, Nashik, thereby
rejecting the objection raised by the petitioner No.2 for dereserving the
Chande-Kasare Block, Tq. Kopergaon, Dist. Ahmednagar, is illegal, arbitrary
and violative of Article 14 & 21 of the constitution of India hence liable
to be quashed and set aside.
Issue writ of mandamus, or any other appropriate writ, order or directions
in the nature of writ of mandamus directing the respondent No.2 to 4 to
take necessary steps to reserve the Chande-Kasare Block, Tq. Kopergaon,
Dist. Ahmednagar for backward class of citizen category instead of other
backward class category (Women) and to take consequential steps from
conducting the elections for the said block according to law and for that
purpose issue necessary orders.
Pending hearing and final disposal of this writ petition, grant an
injunction directing the respondent No.2 to 4 to take necessary steps
forthwith for dereserving the Chande-Kasare Block, Tq. Kopergaon, Dist.
Ahmednagar and further to take necessary steps as per law and accordingly
to conduct the elections for the said block and for that purpose issue
necessary orders.
Pending hearing and final disposal of this writ petition, grant an
injunction restraining the respondent No.2 to 4 from taking further steps
for holding the elections to the extent of Chande-Kasare Block of Kopargaon
Taluka, District Ahmednagar of Ahmednagar Zilla Parishad and for that
purpose issue necessary orders.
Grant ad interim relief in terms of prayer clause (D) & (E).
Pass such other and further order as this Hon’ble Court may deem fit and
proper in the peculiar facts and circumstances of the case.”
The Division Bench of the High Court summarily dismissed the said writ
petition on 16.01.2017 in the following terms:
“PER COURT;
Heard.
The concerned officers have considered the objections of petitioners in
detail and in view of declaration of election schedule and programme by the
respondents, there is constitutional bar to entertain the writ petition.
The writ petitions are accordingly dismissed.”
2. The grievance of the Petitioners is that the writ petition was filed
at the earliest opportunity on 15.11.2016 to challenge the order passed by
Respondent No.3, dated 08.11.2016, rejecting the objection raised by
Petitioner No.2 for dereserving the Chande-Kasare Block in relation to the
ensuing panchayat election. The hearing of the writ petition was deferred
until it was summarily dismissed because of the declaration of the election
schedule on 11.01.2017. According to the Petitioners, the State
Authorities, including the Election Commission, failed to abide by the
mandate of Rules 6, 9 and 10 of The Maharashtra Zilla Parishads and
Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules,
1996, (for short “the 1996 rules”). Further, Section 12 of the Maharashtra
Zilla Parishads and Panchayat Samitis Act, 1961 (for short “the said Act”),
provides for division of District into Electoral Divisions. Sub-clause (d)
of sub-section 2 of this Section predicates that one half (including the
number of seats reserved for women SC, ST and the category of Backward
Class citizens) of the total number of seats to be filled in by direct
election in a Zilla Parishad shall be reserved for women and such seats
shall be allotted “by rotation” to different Electoral Divisions in the
Zilla Parishad. Similarly, the Petitioners are relying on Rules 6, 9 and 10
of the 1996 rules, which provide for the manner of allotment of rotation of
seats reserved for women and backward classes of citizens respectively. In
the present case, however, contends learned counsel for the petitioners
that there has been a clear violation of the said mandate. Therefore, the
High Court ought not to have thrown out the petition at the threshold.
3. The Petitioners, therefore, have approached this Court to challenge
the decision of the High Court as also the decision taken by the State
Authorities/Election Commission. It is, however, not in dispute that the
election schedule was notified by the State Election Commission on
11.01.2017, pursuant to which the election programme was to proceed and
conclude with the declaration of results on 28.02.2017. Accordingly, the
Petitioners had applied for an interim relief which was granted by this
Court vide order dated 25.01.2017, as follows:
“In the 2012 Elections, Electoral Division No.20 (Chande-Kasare) was
reserved for women belonging to scheduled Tribe. In the 2017 Elections, it
is proposed to be reserved for women belonging to Other Backward Classes.
Under the Maharashtra Zilla Parishads and Panchayat Samitis (Manner and
Rotation of Reservation of Seats) Rules, 1996, Rule 6 provides for manner
of allotment and rotation of seats reserved for women. Under proviso to sub-
rule (2) of Rule 6 it is clearly provided that while drawing lots at the
time of subsequent general elections, the Electoral Divisions where such
seats were already reserved in earlier elections for such women shall be
excluded until reservation is given to all the Electoral Divisions by
rotation.
Shri Rakesh Khanna, learned senior counsel appearing for the Petitioners
submits that this rotation is not complete.
In the above circumstances, issue notice, returnable on 10.02.2017.
The election programme to Electoral Division No.20 (Chande-Kasare),
notified as per order dated 11.01.2017 by the State Election Commission,
Maharashtra will stand suspended until further orders.
Dasti service, in addition, is permitted.
Mr. Mahaling Pandarge, learned counsel, appears and accepts notice
for Respondent Nos.1, 3 & 4.”
(Emphasis supplied)
In view of the aforementioned interim order, except for the Electoral
Division No.20 Chande-Kasare Block, the election programme for rest of the
constituencies of the 15 Zilla Parishads and 165 Panchayat Samitis in the
State in Phase One of the General Elections proceeded further.
4. We have heard the counsel for both sides at length. During the
hearing, it was noticed that the scheme regarding rotation of seats
reserved for women or backward class of citizens etc., is a very complex
process. That is discernible from the relevant provisions regarding
allotment and rotation of seats reserved for women. We are of the
considered opinion that even if the Petitioners succeed in pursuading us on
merits, as the election process of phase one has concluded with declaration
of results in respect of other Electoral Divisions, the same cannot be
undermined. Any attempt to make adjustment even in respect of one
constituency i.e. Electoral Division No.20 (Chande-Kasare), would create an
imbalance in the ratio of seats to be reserved for the respective
categories as mandated by the provisions of the 1961 Act and the 1996
Rules. Indeed, the Petitioners have invited our attention to the dichotomy
in the provisions of the Act, in particular Section 12(2) (d), which
postulates allotment of seats by rotation to different Electoral Divisions
in a Zilla Parishad whereas the 1996 Rules provides for allocation of seats
by drawing of lots. There appears to be some confusion if not conflict in
the case of reconciling the mandate of reservation of seats for women in
terms of Section 12(2) (d) and reservation of seats for women in reserved
categories in terms of the Rules. The fact remains that the validity of
provisions contained in the 1996 Rules has not been challenged in the writ
petition. Further, the election schedule notified on 11.01.2017 by the
State Election Commission has proceeded to its logical end in respect of
all other Electoral Divisions of the concerned Zilla Parishad/Panchayat
Samitis. There is no challenge to those elections nor those elections have
been made subject to the outcome of the present Special Leave Petition. As
a result, no effective relief can be granted to the Petitioners.
5. As aforesaid, any attempt to do so would inevitably upset the ratio
of reservation of seats for women in the other Electoral Divisions where
the election process is complete. In other words, accepting the
Petitioners’ prayer in the writ petition at this stage would result in
creating an imbalance in that ratio, which will be in violation of the
letter and spirit of the law. For that reason, we decline to interfere in
this petition and leave it open to the Petitioners to pursue any other
remedy as may be permissible by law. The same will have to be decided in
accordance with law. We make it clear that in the peculiar facts of the
case on hand, we do not intend to express any view on the correctness of
the issue canvassed before us by either side and we leave all questions
open.
6. Accordingly, this petition is dismissed in the above terms with no
order as to costs. Interim relief granted on 25.01.2017 is vacated
forthwith.
...……………………………..J.
(Kurian Joseph)
..…..…………………………..J.
(A.M.Khanwilkar)
New Delhi,
Dated: May 04, 2017
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