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Judgment
A.P. Lavande, J.—Heard Mr. Dessai, learned Advocate for the petitioner and Mr. Nadkarni, learned Advocate General for the respondents. By this petition, the petitioner seeks direction against respondents no.1 and 2 to rectify the errors in Notification (extraordinary) dated 31/03/2012 published in the office gazette dated 31/03/2012 to the extent of shifting voters in Ward Nos.1, 2, 3, 5 and 7 of village Reis Magos as reflected in representation dated 05/04/2012 made by the petitioner to respondent no.2. The petitioner, who is a panch member of Village Panchayat of Reis Magos from Ward No.3 for the year 2007 to 2012 made representations to respondent no.2 pointing out certain errors in respect of Ward Nos.1, 2, 3, 5 and 7 of Village Panchayat of Reis Magos. Respondent no.2 directed respondent no.4 to rectify anomalies, if any, and submit a report. The petitioner claims that pursuant thereto, respondent no.4 submitted his reply to respondent no.2 dated 09/04/2012 withdrawing the report dated 07/04/2012 which was earlier submitted by respondent no.4. Thereafter, respondent no.4 addressed another communication dated 11/04/2012 stating that he was under tremendous pressure from Sarpanch Smt. Sushmita Pednekar and her husband and requested respondent no.2 to look into the matter. However, it appears that in the meantime, on 10/04/2012, the B.D.O. had already written to the Director about the report dated 07/04/2012 and withdrawal of the same on 09/04/2012.
The petition was filed on 17/04/2012 and notice of the same was issued to the respondents on 19/04/2012. Respondent no.2 has filed affidavit, inter alia, contending that the petition is not maintainable in view of Article 243-O of the Constitution of India and in view of the notification dated 18/04/2012 by which election program for the Village Panchayats including Village Panchayat of Reis Magos, has been declared. Thereafter, the petitioner has filed additional affidavit contending that in respect of Village Panchayat of Calangute, the election has been postponed to 21/05/2012 instead of 16/05/2012 as originally scheduled.
Mr. Dessai, learned Counsel appearing for the petitioner submitted that there are illegalities in the formation of Wards of Village Panchayat of Reis Magos in respect of Ward Nos.1, 2, 3, 5 and 7 as mentioned in paragraph 16 of the petition and the same deserves to be corrected. According to Mr. Dessai, formation of Wards has been done at the instance of the Sarpanch as is evident from the communications dated 07/04/2012 and 11/04/2012 of respondent o.4. Mr. Dessai further submitted that although election program has been declared, bar under Article 243-O of the Constitution of India, would not be applicable and in the event the corrections are not carried out, the right of the petitioner, who is presently member of Ward No.3, to contest the election from the said Ward would be seriously affected. In support of his submission that bar under Article 243-O of the Constitution of India is not attracted, Mr. Dessai placed reliance upon the judgment of this Court in the case of Anant Janardan Patil Vs. State of Maharashtra; 2002 Vol. 104(2) Bom. L. R. 40 and order dated 10/04/2007 passed by the Division Bench of this Court in Writ Petition No.188/2007 (Mr.A. I. Savio Gomes and another Vs. State of Goa and others).
Per contra, Mr. Nadkarni, learned Advocate General appearing on behalf of the respondents submitted that since the election program has been declared by notification dated 18/04/2012, bar under Article 243O of the Constitution is clearly attracted and at this stage, it is not permissible for this Court to grant relief sought by the petitioner. Learned Advocate General further submitted that the Secretary of Village Panchayat has not been joined by name and as such, the reliance placed by the petitioner on the communications of respondent no.4 regarding the alleged pressure from the Sarpanch, is of no help to the petitioner. Mr. Nadkarni further submitted that the Secretary at one point of time having informed respondent no.2 that there were errors in the formation of Wards but later on withdrew the report and thereafter, again contended that he was under tremendous pressure from the Sarpanch and as such, no reliance could be placed on the communications of the Secretary of the Village Panchayat. Mr. Nadkarni further invited our attention to the fact that certain errors as mentioned in paragraph 16 of the petition in respect of Ward No.3 are factually not correct as is evident from the gazette dated 31/03/2012 which discloses that some of the houses mentioned in paragraph 16 of the petition have been already included in Ward No.3. Mr. Nadkarni submitted that in view of Articles 243-K and 243-O of the Constitution of India, once the election program is declared, no interference is warranted by this Court and the petitioner is not entitled to the relief sought for. Mr. Nadkarni further submitted that the reliance placed by the learned Counsel for the petitioner on the judgment and order is totally misplaced and the same do not advance the case of the petitioner. In support of his submissions, Mr. Nadkarni placed reliance upon the judgment of the Apex Court in the case of P. Ram Reddy and Others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others, and the judgment of the Division Bench of this Court in the case of Jadhav Shankar Dyandeo and others Vs. The Collector and another; 2010(6) Bom. C. R. 48.
We have carefully considered the rival submissions, perused the record and the judgments relied upon.
In the present case, indisputably, the election program has been already declared by the Notification dated 18/04/2012 and election of all the Village Panchayats except Village Panchayat, Calangute are scheduled on 16/05/2012. In respect of Village Panchayat, Calangute by a separate notification, the election has been postponed to 21/05/2012. In the case of Pradhan Sangha Kshettra Samiti (supra), the Apex Court in paragraph 46 of the judgment observed thus :
What is more objectionable in the approach of the High Court is that although Clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in the connection, refer to a decision of this Court in Meghraj Kothari Vs. Delimitation Commission and Others, : Meghraj Kothari Vs. Delimitation Commission and Others, . In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order u/s 8 or 9 of the Delimitation Commission Act and published u/s 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by the Parliament itself which could only be made by it under Article 327. If we read Articles 243C, 243K and 243O in place of Article 327 and Sections 2(kk), 11F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31st August 1994.
From a bare reading of the above paragraph what emerges is that the Apex Court has held that in view of Articles 243C, 243K and 243O, it is obvious that neither delimitation of panchayat area nor constituencies in the said area and the allotments of the seats to the constituencies could have been challenged and the Court could not have entertained the challenge on the ground that before delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding elections was issued. The Apex Court held that the High Court could not have gone into the merits of the grievances since the challenge was made after the notification for election was issued on 31/08/1994. Similarly, in the case of Shankar Jadhav (Supra), the Division Bench of this Court relied upon the above referred judgment and the judgment in the case of Meghraj Kothari Vs. Delimitation Commission and Others, and after considering the Bombay Village Panchayats Act, 1958, held that in view of Article 243C, 243K and 243O of the Constitution, the challenge to delimitation of the panchayat area for the formation of constituency and the allotment of seats to each constituency was not maintainable. In the present case, admittedly, the election program has been already declared. The grievance of the petitioner in the present petition is that there are illegalities in the formation of different wards in the Village Panchayat Reis Magos. Therefore, the challenge by the petitioner is not maintainable in view of the ratio of the judgment in the case of Pradhan Sangh Kshettra Samiti (supra) and the judgment in the case of Shankar Jadhav (Supra).
Insofar as the judgment in the case of Anant Janardan Patil (Supra) is concerned, the facts are clearly distinguishable. In the said case, the nomination form of the petitioner, who was contesting from Ward No.4 of Village Panchayat Navghar, which was reserved for Scheduled Tribes, was rejected on the ground that although he had annexed xerox copy of Scheduled Caste Certificate, but certificate was not in prescribed format. The Division Bench had directed the Returning Officer to scrutinise the nomination papers in accordance with law with further direction that his nomination should not be rejected on the ground of caste claim of the petitioner as Scheduled Tribes. The result of the election was subject to decision of the petition. The petitioner, who was ultimately found to be the sole contestant, was declared elected. With this factual background, the Division Bench held that bar under Article 243O of the Constitution of India would not come in the way of granting relief in favour of the petitioner. The factual matrix in the said case is clearly distinguishable and as such does advance the case of the petitioner.
In the case of A. I. Savio Gomes (Supra), the Division Bench granted interim relief directing the respondent State Election Commissioner and Returning Officer to accept the nomination of the candidates belonging to Scheduled Tribes in seats meant and reserved for Scheduled Tribes by the State. The Division Bench found that the State Election Commissioner could not ignore reservations provided by the Government and refuse to accept the nomination of the candidates belonging to Scheduled Tribes. The Division Bench held that prima facie what was called into question was not ''an election'', but validity of refusal by the State Election Commissioner and Returning Officer to treat several seats as reserved though they were actually reserved by the competent authority. Taking note of the said provisions, the Division Bench held that the action of the State Election Commissioner and Returning Officer not to treat the seats as reserved for Scheduled Tribes though reserved by the State Government, was patently unsustainable in law. Thus, the facts in the said case are also clearly distinguishable and as such would not advance the case of the petitioner.
The reliance placed by the petitioner on the notification postponing the election of Village Panchayat at Calangute is totally misplaced. Merely because the election of the Village Panchayat of Calangute has been postponed, this fact by itself would not entitle the petitioner to the relief sought in this petition at this stage. Thus, we are of the considered opinion that the objection taken on behalf of the respondents that the petitioner is not entitled to the relief sought for at this stage is well founded and deserves to be accepted. The ratio of the judgment in the case of Pradhan Sangha Kshettra Samiti (Supra) relied upon by Mr. Nadkarni, is squarely applicable in the present case. The petitioner has not made out any case for exercising extraordinary jurisdiction by this Court at this stage. Hence, the petition is liable to be dismissed and is hereby dismissed.