Abdul Rashid Khan Mamoo vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 204

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.P. Shah B.H. Marlapalle, JJ.
Abdul Rashid Khan Mamoo ..... Petitioner.
Versus
The State of Maharashtra others......Respondents.
Writ Petition No. 1478 of 1997, decided on 28-4-1997.
Advocates appeared :
S.B. Talekar, for the petitioner.
A.M. Kanade, GP, for respondent No. 1.
S.C. Bora, for respondent Nos. 3 7.
Zia-Ul-Mustafa, for respondent No. 5.
Suresh Kulkarni, for respondent No. 8.
P.V. Mandlik, for respondent.
P.M. Shah, for the Intervenor.

Headnote:Section 19(1)(A)-Maharashtra Municipal Corporations Offices of (Reservation of Mayor) Rules, 194-Rule 3-Constitution of India, Article 243- T -Validity of government directions-Reservation of Mayors post-Candidate elected on seat not reserved for specific category-Granted nomination-Challenged-Held-Only those candidates are eligible who are elected from particularly reserved seat-Others not eligible even if they belong to that category.-When the thrust of the Rule is that the offices of the Mayor in the Corporation must go by rotation to members belonging to specified categories. It would necessarily mean that the concerned elected member of the Municipal Corporation must have got elected on the seat available to the category for which the reservation has been made for Mayors post. The concept of rotation clearly implies that for the contest of Mayorship by rotation, a reservation is made for members elected from a particular category and only those members can contest for Mayorship.
       The Rule 5 which deals with the power of the State Government in the event of casual vacancy, provides that that in case of vacancy such post will be allotted only to the caste, tribe or category as determined by the State Government. On a combined reading of Rule 3 and the provisions of Section 19(1-A), it is clear that a candidate who has not got elected from the category for which the Mayors post is reserved, is not eligible to contest for the said post.
       Articles 243- T and 226-Courts observation-Nomination paper for post of Mayor-Caste certificate-Alleged to be bogus-Two caste certificates issued to same person-Government must get it scrutinised-By scrutiny committee-If found false Concerned personal must be put to criminal prosecution.-Article 243- T of the Constitution is enacted with the avowed object of securing the guarantee given by the Constitution of the Citizen, particularly of the Scheduled Castes and Scheduled Tribes. These communities are kept away from the main stream of national life and, therefore, the reservation has been uniformly made applicable by virtue of Article 243- T in all the Municipalities. Unfortunately, it has come to our notice that this policy has been exploited by some unscrupulous people who are falsely claiming class status in order to set up their claim to the posts reserved for these classes. Court has come across a number of matters where court find that false certificates have been procured for the purposes of elections in Municipal Councils and other local bodies. In some cases court even noticed that forged certificates are produced with a view to gain access to the Chairmanship. Court is constrained to observe that the authorities are issuing caste certificates in a casual manner without even taking care to verify whether the claim is supported by the necessary evidence of caste. If the scrutiny committee finds that a false claim has been set up by the respondent No.5 or by the respondent No.6.
       Maharashtra Municipal Corporations Offices of (Reservation of Mayor) Rules, 1994
       Rule 3-See Bombay Provincial Municipal Corporations Act, 1949, Section 19(1-A).

JUDGMENT - A.P. SHAH, J. :---This petition under Article 226 of the Constitution of India raises an important question of law in the matter of reservation of the offices of Mayor in the Municipal Corporations in the State of Maharashtra under section 19(1A) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter called the Act) read with the Maharashtra Municipal Corporations (Reservation of Offices of Mayor) Rules, 1994.

2.The elections to the Municipal Corporation of Aurangabad were held on 16th April, 1995. The Municipal Corporation of Aurangabad consists of 82 Councillors elected at the ward elections. Out of 82 seats, only one seat of Councillor being ward No. 55, Kotwalpura, was reserved for Scheduled Tribes. The petitioner had contested the elections and got elected from ward No. 55 which was reserved for the candidate of Scheduled Tribe. The respondent No. 5 was elected from ward No. 56, which was a general category ward and the respondent No. 6 was elected from ward No. 53, which was reserved for woman (general).

3.Article 243-T of the Constitution provides for reservation of seats in self-governing institutions constituted under Article 243-O. Article 243-T(4) states that the offices of Chairperson in Municipalities shall be reserved for the Scheduled Castes, Scheduled Tribes and women in such manner as the Legislature of the State may, by law, provide. Accordingly, the Legislature of the State amended the Bombay Provincial Municipal Corporations Act, 1949. By the said amendment, section 5-A, providing for reservation of seats at elections of the Municipal Corporations and section 19(1-A) providing for reservation for the offices of the Mayor in the Corporation, came to be inserted by the Maharashtra Act No. 41 of 1994. Sections 19(1-A) reads as follows:

"19(1-A) There shall be reservation for the offices of the Mayor in the Corporation, by rotation, for Scheduled Castes, Scheduled Tribes, Woman and the Backward Class of Citizen, in the prescribed manner."

4.The State Government framed Rules in exercise of powers conferred by section 19(1-A) of the Act known as "The Maharashtra Municipal Corporations (Reservation of Offices of Mayor) Rules, 1994". Under the said Rules, the offices of Mayor in Municipal Corporations in the State are required to be reserved by rotation and by drawing lots each year. The meeting to draw lots for the purpose of reservation of offices of Mayor by rotation was held in the office of the Minister of State for Urban Development Department on 23rd October, 1996. By the lots drawn in the said meeting, only one post was reserved for Scheduled Tribes in the year 1997 in the Municipal Corporations in Maharashtra, which went to Municipal Corporation of Aurangabad.

5.It seems that the Deputy Secretary, Urban, Rural and Water Conservation Department, Mantralaya had issued certain directions to all the Collectors in Maharashtra informing that the members belonging to Scheduled Castes, Scheduled Tribes, even if elected on general seats, were eligible for the post of President of the Zilla Parishads or Sabhapati of the Panchayat Samiti. However, the directions contained in the said letter dated 12th March, 1997, issued by the Deputy Secretary came to be stayed by this Court in Writ Petition No. 977 of 1997.

6.At this point it is necessary to state that in the meanwhile the Supreme Court had an occasion to consider the effect of Article 243-T(4) in the context of similar provisions of the Haryana Municipalities Act and the Rules framed thereunder in (Saraswatidevi v. Smt. Shanti Devi others)2, A.I.R. 1997 S.C. 347. The Supreme Court held that when a seat of President of the Municipal Council was reserved by rotation for members belonging to the scheduled castes women category, a candidate elected from the ward reserved for scheduled caste woman shall be entitled to contest for the Presidentship and the candidate elected from general category is not entitled to contest such election even i

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1997 Supreme(Bom) 204

Cases Referred (1)