Momin Abdul Rashid vs Patil Vilas Raghunath and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 500

IN THE HIGH COURT OF BOMBAY
Ashok Agarwal J.A. Patil, JJ.
Momin Abdul Rashid ..... Petitioner.
Versus
Patil Vilas Raghunath others .... Respondents.
Writ Petition No. 3110 of 1997, decided on 23-9-1997.
Advocates appeared :
M.M. Vashi, for the petitioner.
Nitin V. Pradhan with S.D. Khot, for respondent No. 1.
R.M. Agrawal, for respondent No. 3.
N.M. Zambre, A.G.P., for respondent No. 2 and 4.

Headnote:Article 243-T-See Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Sections 21(10) and 15(5).
Sections 21(10) and 51(5) constitution of India, Articles 226 and 243-T-Post of President-Reserved for general category-3 nominations filed-One already withdrawn-others nomination got rejected-As he was elected from reserved seat-Claim to be declared elected by 3rd-Contention-If, others had any idea of such circumstances, they would have also filed-Held-The only remaining candidate can be declared elected as per decision in AIR 1969 SC 604 and AIR 1976 SC 2283.-In the instant case Shri A points out, respondent No.1 has been elected as President. If, the said post becomes vacant on account of his nomination being invalidated, re-election in terms of sub- sections (2) to (5) of Section 11 of the Act would be required to be held. This is especially so as the aforesaid sub-section provides if, there is vacancy in the office of the President due to any reason whatsoever. The provisions of sub-section (8) of Section 51 can come into play only after respondent No.1 can be said to have been validly elected as President. If, the nomination of respondent No.1 is held invalid, what follows is that the petitioner will be the only sole contesting candidate for the post and hence, he will be entitled to be declared elected as President. That a third candidate had withdrawn his nomination in favour of respondent No.1 or that other candidates would be interested in filing their nominations, is neither here nor there. The fact is that the third candidate who had filed his nomination had withdrawn his nomination. The petitioner and respondent No. 1 were the only surviving contestants in the fray, respondent No. 1 in view of the aforesaid decisions, of the Supreme Court is not eligible to contest for the post. His nomination, in the circumstances, is liable to be held to be invalid. As a consequence, the petitioner is the sole contesting candidate for the post and hence, he is declared elected to the said post.
Sections 21(10) and 51(5)Constitution of India, Article 243- T Municipal President-Election-Seat reserved for General category-If, reserved category candidate can seek election-An OBC category candidate elected from reserved seat seeking election-Held-Apex Court has already decided that, it is necessary that post should go to the category for which it is earmarked-That to only to candidate elected from that category.-It would, therefore, follow that even the general category is a category in itself as is the case of other categories such as Scheduled Castes, Backward Class. etc. Hence, the post of President which by rotation is earmarked for the general category candidates the same will be deemed to have been reserved for candidates belonging to that category only. The post will, therefore, be held as reserved for general category candidates. Hence, only such candidates who belong to the general category and have been elected from wards which are earmarked or reserved for the general category candidates will alone be entitled to be eligible to contest. Since respondent No.1 does not belong to the general category candidates and since he has not been elected from a ward earmarked or reserved for general category candidates. He. will not be eligible to contest for the post. In the circumstances, the nomination of respondent No.1 for election to the post of President should not have been accepted and the contrary decisions of the Sub-Divisional Officers and Commissioner I Regional Director of Municipal Administration are liable to be quashed.

JUDGMENT - ASHOK AGARWAL, J.:---The present petition pertains to a dispute in respect of the election of respondent No. 1 to the post of President of Bhiwandi-Nizampur Municipal Council. Petitioner and respondent No. 1 were the only contesting candidates for the election to the post of President held on 9th May, 1997. The post of President for the present term is earmarked for open category candidates. As far as petitioner is concerned, he belongs to the open category and has been elected from a ward earmarked for open category candidates. As far as respondent No. 1 is concerned he belongs to the backward class citizens and has been elected from a ward reserved for backward class citizens. Apart from the petitioner and respondent No. 1, one Shri Dalavi Javed Gulam Mohamad had also filed his nomination for the post of President. He, however, withdrew his nomination. After respondent No. 1 filed his nomination petitioner had raised an objection to his nomination on the ground that the post of President had been earmarked for open category candidates and hence respondent No. 1 who had been elected from a ward earmarked for backward class citizen was not eligible to contest. The said objection did not find favour with the Sub-Divisional Officer, who, by an order passed on 9th May, 1997 overruled the objection. Petitioner and respondent No. 1 were the only candidates in the fray. Elections were accordingly held and respondent No. 1 was declared elected.

2. The petitioner, being aggrieved by the order, overruling his objection to the nomination of respondent No. 1, carried the matter in appeal to the Commissioner/Regional Director of Municipal Administration who, by an order passed on 12th June, 1997, confirmed the order passed by the Sub-Divisional Officer and dismissed the appeal. Taking exception to the aforesaid orders passed by the Sub-Divisional Officer and Commissioner/Regional Director of Municipal Administration, the petitioner has preferred the present petition.

3. The short question which has been raised in the present petition is in regard to the eligibility of respondent No. 1 to contest for the post of President. The post of President, as already indicated, has been earmarked for the open category candidate. As far as petitioner is concerned, he belongs to the open category and has been elected from a ward earmarked for open category candidates. Respondent No. 1 on the other hand belongs to the backward class citizens and has been elected from a ward reserved for backward class citizens.

4. Shri Vashi, who appears on behalf of the petitioner, has contended that the post of President is reserved for a candidate belonging to the open category. Hence, in order to be eligible for contesting for the post, a candidate must necessarily, not only belong to the open category but should also have been elected from a ward earmarked for open category candidates.

5. In support of the contention reliance is placed on a decision of the Supreme Court in the case of (Saraswati Devi v. Smt. Shanti Devi and others)1, reported in A.I.R. 1997 Supreme Court, 347. The Supreme Court in the aforesaid case has inter alia observed as under :--

"On a combined reading of Article 243-T of the Constitution of India sections 10(5) and 18 of the Act and sub-rule (4) of Rule 70 of Election Rules, it becomes clear that the Parliament as well as the Legislature have enacted these provisions in order to provide for reservation of office of the President for members of Scheduled Castes, Scheduled Tribes, backward classes and women in rotation. A bare reading of section 10(5) and Rule 70(4) shows that the offices of the Presidents are to be filled from among members belonging to different categories by rotation and by lots. It is not disputed that the post of President of Loharu Municipal Committee at the relevant time was reserved for Scheduled Castes Women. So far as the appellant is concerned, she has been elected from Ward No. 5 on a seat reserved for Sc

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