Sharad Shivaji Jamdar v. The State of Maharashtra and Ors

14. In Writ Petition No. 8396 of 2022 again the Petitioner is not an objector but challenging an order whereby the objection was considered and allowed and formation of ward was done. Petitioners are from village Bhose. Now the village Bhose earlier in Gat No.- A and after formation of ward the village Bhose included in Gat No. – B.

15. In Writ Petition No. 8155 of 2022 an grievance was raised in respect of non following guidelines. The objection was that due to peculiar geographical condition, namely, there is a mountain between two villages and one village Male was earlier in ward NO. 36 and in process of formation of ward it is now shifted and added in ward no. 31. It is also submitted that for Panchayat Samit Elections this objection was considered whereas in so far as Zilla Parishad Elections is concerned, this objection is rejected.

16. Learned Counsel appearing for Petitioner in Writ Petition No. 8101 of 2022 submitted that the river flows between two villages and while conducing the process of formation of ward this peculiar circumstance is not taken into consideration.

17. Learned Counsel appearing for Petitioner in Writ Petition No. 855 of 2022 submitted that Petitioner has not raised any objection and coming before this Court aggrieved by private notification in respect of ward no. 57. Then there is also challenge of swapping of villages in the formation of ward and submission is this swapping of villages is against the guidelines.

18. Learned Counsel appearing for Petitioner in Writ Petition No. 7266 of 2022 submitted that as the term of Zilla Parishad would expire in November 2022, the Petition be entertained and Election Commission be directed to rectify ward formation.

19. An intervention application(s) is filed in the lead Petition. It is vehemently submitted by learned Counsel for intervenor that all the objections were duly considered by the competent Authority. The Counsel for intervenor vehemently submitted that though the Petitioner raised hue and cry on the aspect of wrong formation of the wards by not following the guidelines of Election Commission, but, in Petition challenge is raised only to the order passed by Divisional Commissioner, Pune and if Petitioner was aggrieved by the non-adherence to the Election Commission’s Guidelines and if the Petitioners submitted that the guidelines are framed whereby there is an unnecessary insistence on a private map, namely, google map, the Petitioner ought to have challenged the guidelines issued by the Election Commission. As there is no challenge to the guidelines, the submissions advanced by the Counsel cannot be accepted.

20. Mr. A. A. Kumbhakoni, learned Advocate General appearing for Respondent - State as well as Mr. Shetye, learned Counsel appearing for Election Commission submitted that as the election program is now declared and as it is a consistent view of the Hon’ble the Apex Court as well as this Court that once election program is declared this Court may not interfere in the elections and the aggrieved party may avail other remedies to raise their grievance in respect of elections.

21. Mr. Kumbhakoni placed on record a copy of the order passed by the Hon’ble the Apex Court as well as a reliance was also placed on the order passed by this Court at Aurangabad Bench.

22. Mr. Shetye, learned Counsel appearing for Respondent – Election Commission while opposing the Petitions vehemently submitted that the Petitioners proceeded on misconception. He further submitted that guidelines framed by the Election Commission are only to assist competent Authority in formation of ward. The basic considerations as reflected in the guidelines are the population and geographical condition. Mr. Shetye then refers to clause 4.5.[5] of guidelines and same reads as “jpuk vkVksi’khj o ‘kD;rksoj HkkSxksfyd jpuk”, loosely translated as as far as possible. Hence, Petitioner cannot submit before this Court that while formation of ward their shall be a strict adherence to the geographical condition. Mr. Shetye submitted that clause 4.5.[6] of guidelines takes care of the population of SC and ST category. Mr. Shetye submitted that the State Election Commission made a strict adherence to the principle of natural justice and accordingly, objections were heard and decided considering their merits.

23. In an affidavit filed on behalf of Respondent No. 2 through Under Secretary, State Election Commission it is stated that the Hon’ble Apex Court vide order dated 04th May, 2022 in the matter of Rahul Ramesh Wagh vs. The State of Maharashtra and Ors (SLP

(C) No. 1975[6] of 2021), has directed the State Election

8. … … … The Apex Court has observed that the conduct of the elections of all local bodies of which the term have already expired are require to be conducted before the expiry of such term and the conduct of the elections of such local bodies cannot brook any delay. The Apex Court has further observed that the election program of such local bodies must proceed and the State Election Commission is obliged to notify the election program within two weeks. Then a reference is made to an order passed by the Hon’ble Apex Court on 10th May, 2022 in the matter of Suresh Mahajan Vs. State of Madhya Pradesh and Anr in Writ Petition (Civil) No. 278 of 2022. The copy of the said order is annexed to the affidavit-in-reply at annexure R-4, page 106. It may not be out of place to refer to certain observations of the Apex Court which assumes importance and the same reads thus:

5. The elections have not been held assumedly for the same reason as in the case of State of Maharashtra, namely, the State has still not been able to complete the triple test formalities as predicated in the decision of this Court in Vikas Kisanrao Gawali Vs. State of Maharashtra[3]. As a result of which, reservation of Other Backward Classes (OBC) category cannot be provisioned by the State Election Commission. This has happened despite the peremptory directions given by this Court vide successive orders, including dated

03.03.2022. This Court has made it amply clear that conduct of elections to install the newly elected body in the concerned local self-government cannot brook delay, owning to the Constitutional mandate exposited in Article 243-E and 243-U including the provisions in the concerned State Legislation in that regard.

6. A somewhat hiatus situation occurs and is permitted only when the dissolution of a local body is necessitated before the expiry of the term of that local body. Else, the term of the local selfgovernment has been specified as 5 (five) years from its first meeting, “and no longer”, in Article 243-E as well as in Article 243-U. This has been restated by the Constitution Bench of this Court in Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad & Ors[4].

7. Thus, all concerned are obliged to ensure that the newly elected body is installed in every local body before the expiry of 5 (five) years term of the outgoing elected body. Even in case of dissolution before the expiry of five years period, where an Administrator is required to be appointed by the State, that regime cannot be continued beyond 6 (six) months by virtue of relevant provisions in the respective State Legislation(s).

8. This constitutional mandate is inviolable. Neither the State Election Commission nor the State Government or for that matter the State Legislature, including this Court in exercise of powers under Article 142 of the Constitution of India can countenance dispensation to the contrary.

24. In the present bunch of Petitions the principal ground pressed is of formation of ward and by pressing this ground the Petitioners prayed for allowing the Petitions and/or for grant of an interim relief. We may state that grant of any interim relief would certainly result in an interference in the course of election. It is also not in dispute that the election program is declared by the State Election Commission and any interim order would certainly an interference in the election. On the backdrop of these facts, further observations of the Hon’ble Apex Court in the order dated 10th May, 2022 again assumes much importance and the same reads thus:

11. In any case, the ongoing activity of delimitation or formation of ward cannot be a legitimate ground to be set forth by any authority much less the State Election Commission - to not discharge its constitutional obligation in notifying the election programme at the opportune time and to ensure that the elected body is installed before the expiry of 5 (five) years term of the outgoing elected body. If there is need to undertake delimitation - which indeed is a continuous exercise to be undertaken by the concerned authority it ought to be commenced well-in-advance to ensure that the elections of the concerned local body are notified in time so that the elected body would be able to take over the reigns of its administration without any disruption and continuity of governance (thereby upholding the tenet of Government of the people, by the people and for the people). In other words, the amendment effected to the stated enactments cannot be reckoned as a legitimate ground for protracting the issue of election programme of the concerned local bodies.

12. Therefore, we direct the State Election Commission by way of interim order, to issue election programme without any further delay on the basis of the wards as per the delimitation done in the concerned local bodies when the elections had become due consequent to expiry of 5 (five) years term of the outgoing elected body or before coming into force of the impugned Amendment Act(s) whichever is later. On that notional basis, the State Election Commission ought to proceed without any exception in respect of concerned local bodies where elections are due or likely to be due in the near future without waiting even for the compliance of triple test by the State Government for providing reservation to Other Backward Classes. We have no manner of doubt that only such direction would meet the ends of justice and larger public interests consistent with the constitutional mandate that the local self-government must be governed by the duly elected representatives uninterrupted except in case of its dissolution before expiry of the term on permissible grounds. (Emphasis supplied)

25. At this stage, we may state that though Mr. Anturkar vehemently submitted before this Court that the case of the Petitioners falls in the exceptional category of cases as carved out by the Hon’ble Apex Court, we are unable to accept this submission for the reason, that only on the ground google map service is a private and as it is not a full proof service, the authority ought to have taken assistance of the maps prepared by the Archaeological Survey of India or by Bhuvan.

26. It is vehemently urged on behalf of Petitioners that the Respondent – State Election Commission in its guidelines permitted the authority to take assistance of google map while considering the formation of wards made. We find that it is not the case that in all wards at the time of formation of wards, google map is used as a base, in some cases authority have utilised the maps already prepared by the PWD and if there was no prohibition for the authority to use google map as a basis, the Petitioners only on basis of some article wherein the author has expressed her personal views cannot submit before this Court that using of google map is a wholesome error committed by the authority and on that comment alone the Petition be allowed and/or interim relief be granted.

27. Now coming back to the order of the Hon’ble Apex Court dated 10th May, 2022 we may refer to certain other observations in the very order as under:

28. We were also informed by the learned counsel appearing for the Madhya Pradesh State Election Commission during the course of arguments that some writ petitions are pending before the High Court in which interim orders have been passed and that may come in the way of the State Election Commission to notify the election programme. In that regard, we make it clear and also direct that the State Election Commission must abide by the directions and observations in this order uninfluenced by any order of the High Court or the Civil Court on the subject of elections of the concerned local self-government, as the case may be. If any order passed or to be passed hereafter by the High Court or the Civil Court in the State of Madhya Pradesh, is in conflict with the directions given by this Court, the same shall be deemed to have been superseded in terms of this order and not to be acted upon without the prior permission of this Court. (Emphasis supplied)

31. We also make it clear that this order and directions given are not limited to the Madhya Pradesh State Election Commission/State of Madhya Pradesh; and Maharashtra State Election Commission/State of Maharashtra in terms of a similar order passed on 04.05.2022, but to all the States/Union Territories and the respective Election Commission to abide by the same without fail to uphold the constitutional mandate. (Emphasis supplied)

28. A reliance was also placed on the judgment of this Court dated July 05, 2022 in a bunch of Petitions at Aurangabad bench. In these bunch of Petitions also the interim prayer was for staying the order of ward formation. While considering the submissions, the Division bench of this Court was pleased to observed as under:

16. Upon hearing the parties, we are convinced that these writ petitions are not maintainable before this Court under Article 226 of the Constitution for more reasons than one which we shall presently assign.

19. While perusing the decision in State of Goa (supra), we noticed that the decision of the Constitution Bench of the Supreme Court in Lakshmi Charan Sen and others Vs A.K.M. Hassan Uzzaman and others, reported in (1985) 4 SCC 689, was cited. Although any detailed discussion with reference to such decision is not available in State of Goa (supra), the conclusions recorded in paragraph 68 are in sync therewith. The Supreme Court culled out the principles from its earlier precedents, which each Court ought to bear in mind while dealing with proceedings seeking relief in respect of election matters. Although Mr. Palodkar sought to draw support from paragraph 68.8, we have not been able to persuade ourselves to agree with him. We are conscious that a judgment of a Court cannot be read as if it were a statute, yet, the Supreme Court having expressed what are the results of its reading and understanding of the precedents, it would not be open for the High Court to take a view which strikes a discordant note with the view of the Supreme Court. The words in paragraph 68.8, on which we have laid emphasis, leave none in doubt that a challenge can be laid to orders relating to delimitation or allotment of seats including preparation of electoral rolls, which do not form part of the election process, in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies. Here, it is the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereafter

20. The second reason has its roots in the self-imposed restrictions, which a writ court is required to abide by in the course of exercise of its discretionary jurisdiction. The decision of the Supreme Court in Anugrah Narain Singh and another Vs State of U.P. and others, reported in (1996) 6 SCC 303, considered the decision in Lakshmi Charan Sen (supra) in some detail. The law laid down by the Supreme Court in Lakshmi Charan Sen (supra) that an election cannot be allowed to be stalled on the complaint of a few individuals, for, such stalling would cause grave injustice to other voters having the right to elect representatives to the local bodies, was reaffirmed. The conclusions recorded by the Supreme Court in an order dated 30 th August, 1982, which formed part of the final judgment/decision in Lakshmi Charan Sen (supra) were noticed in Anugrah Narain Singh (supra), to the effect that no High Court in exercise of its powers under Article 226 of the Constitution shall pass any order, interim or otherwise, having the tendency or effect of postponing an election that is reasonably imminent and in relation to which its writ jurisdiction is invoked, and that imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court’s writ jurisdiction. The Court emphasized that “the more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution”. The High Courts were also urged to bear in mind self-imposed limitations on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections. (Emphasis supplied)

29. The Division bench further observed as under:

26. On due consideration of the judgment in Suresh Mahajan (supra), we cannot by a judicial fiat stall the elections which are imminent. The same have to be conducted and completed without any delay, as directed by the Supreme Court. (Emphasis supplied).

27. It is well known that a Court exercising plenary jurisdiction under Article 226 of the Constitution ought to issue a writ which would further public interest and not thwart it. What emerges, giving due regard to the law laid down by the Supreme Court in State of Goa (supra), Anugrah Narain Singh (supra) and Lakshmi Charan Sen (supra) is that an otherwise imminent election process, therefore, need not be derailed merely because there are certain disgruntled voices who wish to have the wards formed in the manner they like, while dislining the formation brought about by the State Election Commission. If there be any genuine legal grievance which calls for being addressed, the forum prescribed by law has to be approached.

30. Now in so far as the grounds raised by the Counsel for Petitioners in respect of non-following the guidelines about the aspect of population and google map is concerned, in the written submissions filed before this Court by the State Election Commission it is specifically stated thus:

13. The perusal of the said order shows that all possible care and precautions are directed to be taken before formation of gats and gans as provided under the Act. The formation of gats and gans and determination of its boundaries are basically dependent of his population and it has to adjusted by its geographical continuity. It is a fact that it is impossible to determine arithmetically perfect population and geographically perfect contiguity of boundaries of each constituency. Taking into consideration it is proved under the said order dated 09.05.2022 that as far as average populations of each gats and gans is concerned the 10% more or less is allowed to adjust geographical contiguity. As the same is provided in the clause no. 4.1. Similarly clause 4.5.[5] provides that AS FAR AS PRACTICABLE the geographical contiguity should be taken into consideration.

14. Even clause no. 4.5.[6] provides that a proper care should be taken in the population of reserved categories is required to be divided. (The said order of the State Election Commission is annexed by the Petitioner in WP/8275/22 at Exh. ‘D’ pg. no. 41). The said order further provides that use of google map for the purpose of gats and gans.

15. One of the ground of the challenge is that the google map should not have been for the purpose of determination of the boundaries of gats and gans. It is submitted that first of all there is no prohibition for the use of google map, the said google map are used for the sake of convenience. In fact the use of google map gives more transparency to understand the public at large the exact boundaries of the constituency.(Emphasis supplied)

16. As far as the population is concerned for this election, the population of last presiding census of which the relevant figures are finally published are of 2011 and the same are taken into consideration Section 2 (20.A) of the act provides the definition of ‘Population’. Even the figures of population of SC and ST are made available of last presiding census of 2011 and therefore the same are considered for the purpose of giving representation to the reserved categories i.e. SC and ST.(Emphasis supplied)

17. … … … It is submitted that if at all any of the Petitioners were aggrieved with the procedure laid down in the order dated 09.05.2022 the order should have been independently challenged. Admittedly none of the Petitioner has done so. It is not in dispute that all Petitioners submitted their objections and suggestions and participated in the proceedings of hearing of objections and suggestions, before taking final decision on objections and suggestions the objector or person who has given suggestion are heard by the Ld. Divisional Commissioner, the report of the Ld. Collector / Revenue Authorities qua, the objections and suggestions were placed before the Divisional Commissioner after having considered the material placed before the Divisional Commissioner, the Commission has disposed of objections and suggestions as per the suggestions and directions given under provisions of law and as per the directions given in order dated 09.05.2022. Thus, it may be considered that the maximum care was taken by the Ld. Divisional commissioner while disposing of objections and suggestions and thereafter the final notification of final gats and gans wee issued. This Hon’ble Court may consider and appreciate that this is not the quasi judicial proceedings. It is not provided under the Act. However, to conduct the elections free and fair and to bring transparency before public at large, the said procedure is provided under the said order. The legitimate expectation is that, the Principle of Natural Justice is followed. The SEC has followed it.

19. As on today the election process has come to an advanced stage. The voters list also finalized and the reservation of the schedule caste, scheduled tribes and OBC are to be determined shortly. Thus, interfering at this stage and entertaining these Petitions and passing any interim order would amount to delay the election process and thus this Petition and other companion petitions may kindly be dismissed.

31. In view of the above referred facts, we are of the opinion, that the grounds raised by Mr. Anturkar and learned Counsel appearing for Petitioners in other respective Writ Petitions in challenge to the order impugned in the Petitions about formation of wards, are unsustainable and untenable. On the contrary, we find considerable merit in the submissions of Mr. Kumbhakoni, learned Advocate General appearing for Respondent – State and Mr. Shetye, learned Counsel appearing for Respondent – State Election Commission.

32. In view of above referred considerations, we are of the opinion, that Petitions are devoid of any merits, deserves to be dismissed. Accordingly, Writ Petitions are dismissed.

33. In view of dismissal of Petitions, no separate orders are required to be passed in pending applications, if any, and the same stand disposed of accordingly. Rule is discharged. (KISHORE C. SANT, J.) (PRASANNA B. VARALE, J.)