Kusum Pandurang Khilare vs Sushilabai Mahadeo Swami and other

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 337

IN THE HIGH COURT OF BOMBAY
A.V. Savant J.A. Patil, JJ.
Smt. Kusum Pandurang Khilare ..... Petitioner.
Versus
Smt. Sushilabai Mahadeo Swami others.....Respondents.
Writ Petition No. 2909 of 1997, decided on 9-7-1997.
Advocates appeared :
Dilip B. Bhosale, for petitioner.
P.K. Dhakephalkar, for respondent No. 1.
M.N. Zambre, for respondent Nos. 2 4.

Headnote:Article 243- T -See Maharashtra Municipal Councils, Nagar panchayats and Industrial Townships Act, 1965, Section 51.
Section 51-Constitution of India, Article 243-T-Maharashtra Municipal Councils Nagar Panchayats (President Election) Rules, 1981, Rule 2-A(2 to 5)-Objections on pracess-Election of President on reserved seat-Challenged-Ground-Party has alternate remedy available-Held-By challenging the matter further the very purpose of reservation would be nugatory.-The learned counsel appearing for the contesting respondent No.1 has raised a preliminary objection to the effect that after filing the present petition, the petitioner has also made a representation to the State Government in accordance with the provisions of sub-section (5) of Section 51 of Municipal Act. It is contended that since alternate remedy is availed of. this Court should not exercise its extraordinary powers under Article 226 of the Constitution. There may be no quarrel with the proposition that when there is an efficacious alternate remedy, this Court may not interfere in a writ petition. However, Court is concerned with thee election to the post of the President which was reserved under the roster for the Scheduled Castes women. In the light of the ratio of the Supreme Court decision in AIR 1997 SC 347, there is no doubt that respondent No. 1 was not at all eligible to contest for the post of election of the President of the Municipal Council since she was not elected from the ward reserved for the Scheduled Caste women. As per the rotation, the reservation is for one year five months are already over. In the circumstances refusing to interfere in such matter when the legal position is settled would, defeat the very spirit underlying the scheme of reservation and would render the scheme of reservation nugatory.

JUDGMENT - A.V. SAVANT, J.:---Heard all the learned Counsel.

2.On a motion made by Shri Bhosale, name of respondent No. 3 deleted.

3.Rule.

4.Since the point involved in the petition is covered by the decision of the Hon'ble Supreme Court in (Saraswati Devi v. Smt. Shanti Devi and others)1, A.I.R. 1997 Supreme Court 347 and since out of the period of year, five months are already over, it has become necessary for us to decide the matter expeditiously. Hence, by consent, rule made returnable forthwith and heard all the learned Counsel. The short controversy which arises for our consideration is that both the petitioner and the first respondent are women belonging to the Scheduled Caste. Whereas the petitioner has been elected as councillor from the ward reserved for Scheduled Caste women, the first respondent, though a Scheduled Caste woman, has been elected, from unreserved ward.

5.The dispute relates to the election to the post of President of Indapur Municipal Council, in accordance with the provisions of the Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965. Under section 51 of the said Act, the election has to be held for the post of the President who has to be elected by the elected Councillors from amongst themselves. In view of Article 243-T of the Constitution, the seats have been reserved for Scheduled Caste and Scheduled Tribe in every Municipality and number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality, as the population of the Scheduled Caste in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different wards in a Municipality. Under Rule 2-A of the Maharashtra Municipal Councils, Nagar Panchayats (President Election) Rules, 1981, the Collector of each District has to reserve, by an order published in the Official Gazette for a period of ten years, commencing from the first election of the President the office of the President of each Municipal Council for Scheduled Caste, Scheduled Tribe, Backward Class of Citizens and women as prescribed in sub-rules (2) to (5) of Rule 2-A of the said 1981 Rules. Rule 2-A may be reproduced for ready reference.

2A : Reservation of office of the President

(1) The Collector of each district shall, by order published in the Official Gazette, reserve for period of ten years, commencing the first election of the President after the date of commencement of the Maharashtra Municipalities (President Election) Amendment Rules, 1995, the office of the President of each of the Municipal Council or, as the case may be Nagar Panchayat, in the District, for the Scheduled Castes, the Scheduled Tribes, Backward Class of Citizens and women, as prescribed in sub-Rules (2) to (5) (both inclusive).

(2) The order made under sub-section (1) shall indicate the year/years; for which the office of the President is to be reserved for the Scheduled Caste, the Scheduled Tribes, the Backward Class of Citizens and women.

(3) (a) The number of years for which the office of President is to be reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes shall bear, as nearly as may be, the same proportion to the ten years as the population of the Scheduled Caste or as the case may be, Scheduled Tribes in the Municipal area bears to the total population of the Municipal area. In calculating the years for which office of the President is to be reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes a fraction of a year below six months shall be ignored and a fraction of a year above six months shall be calculated as one year.

(b) One-third of the total number of years reserved under Clause (a) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes;

Provided that where only one

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