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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.

1. 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:

(A) Call for record and proceedings of the case.  (B) Hold and declare that, the impugned order dated 08.11.2016

passed by respondent No.3 Divisional Commissioner, Nashik

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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.  

(C) 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.  

(D) 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.  

(E) 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.  

(F) Grant ad interim relief in terms of prayer clause (D) & (E).   

(G) 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.

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2. 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.  

3. 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

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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

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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

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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

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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

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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