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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.
NITIN W. SAMBRE, ABHAY J. MANTRI, JJ.
Manoj S/o Vitthalrao Wanjari – Appellant
Versus
The Maharashtra State Election Commission – Respondent
Writ Petition No. 4323 of 2024
Decided on : 26-07-2024
Elections - Panchayat Samiti - Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 - Section 63 - The court interpreted Section 63, emphasizing that a bye-election cannot be held if the remaining tenure is less than six months, aligning with the legislative intent to ensure effective representation.
Fact of the Case:
The petitioners, voters of Panchayat Samiti, challenged the election program for a bye-election after a member's death, arguing it violated Section 63 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, as it would result in a tenure of less than six months for the elected member.
Finding of the Court:
The court found that the election program was contrary to the proviso of Section 63, which prohibits filling a vacancy if the remaining term is less than six months, thus supporting the petitioners' claim.
Issues: Whether the Maharashtra State Election Commission's decision to hold a bye-election for a vacancy with less than six months remaining tenure was valid under Section 63 of the Act.
Ratio Decidendi: The court held that the proviso to Section 63 of the Act mandates that if a vacancy occurs within six months of the term's expiration, a bye-election cannot be held, emphasizing the need for effective representation.
Result: The election program for the bye-election was quashed and set aside.
JUDGMENT :
(PER : NITIN W. SAMBRE, J.)
RULE. Rule is made returnable forthwith and heard finally with consent of the parties.
2. The petitioners are claiming to be the voters of Panchayat Samiti, Paradsinga Block, Katol based on which they are claiming to have a statutory right to vote in the elections of Panchayat Samiti, Katol in 11-Paradsinga constituency.
3. The petitioners through these petitions are questioning the election programme dated July 19, 2024 issued by the respondent-Maharashtra State Election Commission (for short, ‘the respondent-Commission’) whereby the bye-election for the vacant post of Paradsinga Constituency of Panchayat Samiti, Katol is declared. The said impugned communication contemplates that the nomination forms are to be filed from July 23, 2024 to July 29, 2024.
4. Since the petitioners have questioned the said election programme based on the provisions of Section 63 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (for short, ‘the Act of 1961’), this Court by a reasoned order dated July 23, 2024 caused notices to the respondents and made the said election subject to outcome of the writ petitions.
5. The factual matrix which is relevant for adjudication of the issue involved is that the member, who was elected against the said seat of Panchayat Samiti, expired on February 09, 2024 thereby resulting into a casual vacancy. Such casual vacancy is to be filled in, in accordance with the provisions of Section 63 of the Act of 1961.
6. The common issue involved in all these writ petitions is about the interpretation of Section 63 of the Act of 1961. The petitioners have questioned the election programme on the ground that after the vacancy had occurred on February 9, 2024, instead of notifying the said vacancy immediately and holding the bye-election, the elections are sought to be held which gives the tenure of less than six months to the elected member.
7. In this background, it is the contention of the learned counsel for the petitioners that if the proviso to Section 63 of the Act of 1961 is appreciated and purposive interpretation is given, the decision of notifying the election can be said to be not sustainable as the same goes contrary to the scheme of Section 63 of the Act of 1961. The tenure of the elected member of Panchayat Samiti, who had died, would have ended on January 16, 2025 as the first meeting pursuant to the provisions of Section 59 of the Act of 1961 which prescribes the term of Office of members of Panchayat Samiti was held on 17th January, 2020.
In the aforesaid background, drawing support from the judgments of the Division Bench of this Court in Writ Petition No.1986 of 2024 [Anil Shivkumar Dube Versus Election Commission of India & Others], decided on March 26, 2024 and 2019 (5) Mh.L.J.722 [Sandip Yashvantrao Sarode Versus Election Commissionof India & Others], it is claimed that the election programme is liable to the set aside as the elected candidate in bye- election will get less than six months tenure as member of Panchayat Samiti.
8. According to the counsel for the petitioners, pari materia provision of Section 151A of the Representation of the People Act, 1950 were interpreted in the aforesaid judgments. It is held in the said judgments that “the remainder of the term” has to be interpreted to mean the term that an incoming candidate will get from the date of notifying the result of the bye-election. It is urged that this provision can be said to be pari materia with the provisions of Section 63 of the Act of 1961. In this background contentions are, if purposive interpretation is given to Section 63 of the Act of 1961 which was earlier done in the aforesaid two judgments in relation to Section 151A of the Act of 1950, the net result would be that the elections cannot be held for a vacancy where the tenure left is less than six months.
9. As against above, Shri A.M. Kukday, learned counsel for the respondent-Commission would urge that the interpretation which is
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