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WP No.10960/2021
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH AT INDORE
S.B.: Hon'ble Shri Justice Subodh Abhyankar
Writ Petition No.10960/2021
(Ranchod Jirati s/o Shatan
AND
Pushpa w/o Sanjay Parmar
Versus
The State of Madhya Pradesh
AND
TWO OTHERS)
(Case was heard on 26th / 27th August, 2021)
Counsel for the Parties
:
Shri Veer Kumar Jain, learned Senior Counsel along with
Shri Akshat Pahadia, learned counsel for the petitioners.
Shri Pushyamitra Bhargava, learned Additional Advocate
General for respondents No.1 and 3 / State of Madhya
Pradesh.
Shri Kamal Airen, learned counsel for respondent No.2 /
State Election Commission, Bhopal.
Shri Abhinav P. Dhanodkar, learned counsel for intervener
(Smt. Manjulata w/o Rakesh Patidar, President, Nagar
Parishad, Anjad, District Barwani, r/o Patel Nagar, Anjad,
District Barwani MP).
Whether approved
for reporting
:
Yes
Law laid down
: The sole question which falls for consideration of this
Court is whether the nomination of Smt. Manjulata
Rakesh Patidar, as the President of Municipal
Council, Anjad, District Barwani (MP) is in
accordance with provisions of Section 29-B (4) read
with Section 37 of the Madhya Pradesh Municipality
Act, 1961; and the following question was formulated
by the Court: -
When the seat of the President is reserved under
Section 29-B for women only, and there are women
councillors available, both, where the seats are
exclusively reserved for the women and also in the
unreserved category where the women have been
elected from open category, whether the women
councillors who have been elected from the seats
reserved for women exclusively can only be
nominated as the President or, the post of the
President can also be filled in by any woman
councillor, from the pool of the women Councillors of
the said Municipal Council, irrespective of the fact
that whether she is elected from reserved category or
unreserved category ?;
Held:
A perusal of Sub Section (4) of Section 29-B of the
Act, which provides for reservation of the Office of
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WP No.10960/2021
President of the Council, clearly reveals that the
mandate is that “as nearly as possible fifty percent of
the total number of offices shall be reserved for
‘women’ including the ‘women’ belonging to the
Scheduled Castes, Scheduled Tribes or Other
Backward Classes; and according to the Proviso to
Section (2) of Section 37 of the Act which refers to
filling of casual vacancies, provides that, “if the office
of President is reserved under Section 29-B, the
President shall be nominated from the elected
Councillors belonging to such“reserved category. For
the purposes of this petition, the word ‘such’ here
refers only to women category which is the reserved
category for the post of President of the Municipal
Council and the phrase “such reserved category”
does not refer to the seats reserved only for women
only but includes the women elected from any other
seat as well.
The Court has no hesitation to hold that when it comes
to filing of vacancy through nomination of a President
of reserved category of 'women' as provided under
Section 37 of the Act, the only condition is that a
candidate must be a ‘woman’ irrespective of her caste
i.e. whether she is “Scheduled Caste”, “Scheduled
Tribe”, “Other Backward Class” or “Unserved
Category” as the 'woman' itself is a “reserved
category”. Thus, in the considered opinion of this
Court, no distinction can be made between a ‘woman’
councillor of from a seat reserved for women only, or
a woman councillor from any other seat; and both of
them would be on the same pedestal, so far as the
nomination of a woman councillor for the post of
President is concerned.
Case relied upon Bihari Lal Rada v. Anil Jain
(Titu) and others reported in (2009) 4 SCC
1.
Significant paragraph
numbers
:
From 14 to 23
Post for
13.09.2021
-
(Subodh Abhyankar)
Judge
3
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Agriculturist,
104, Sawarkar Path,Ward No.11,
Anjad, District Barwani (MP)
House Wife & Councillor, 36/1, Sirvi Mohalla, Ward No.3,
Anjad, District Barwani (MP)
Ministry of Urban Development & Housing Department,
Through Principal Secretary, Vallabh Bhawan, Bhopal
The State Election Commission
Through Secretary,
Nirwachan Bhawan, Bhopal
The Collector,
Office of Collector, Barwani
District Barwani MP)
* * * * *
Shri Veer Kumar Jain, learned Senior Counsel along with Shri Akshat Paha-
dia, learned counsel for the petitioners.
Shri Pushyamitra Bhargava, learned Additional Advocate General for re-
spondents No.1 and 3 / State of Madhya Pradesh.
Shri Kamal Airen, learned counsel for respondent No.2 / State Election Com-
mission, Bhopal.
Shri Abhinav P. Dhanodkar, learned counsel for intervener (Smt. Manjulata
w/o Rakesh Patidar, President, Nagar Parishad, Anjad, District Barwani, r/o
Patel Nagar, Anjad, District Barwani MP).
* * * * *
O R D E R
(Passed on this 13th day of September, 2021)
This petition under Article 226 of the Constitution of India
has been filed by the petitioners (both of whom are the Councillors in
the Municipal Council, Anjad, District Barwani, MP) against the inac-
tion on the part of the respondents to fill in the vacancy of the President
of Municipality, Anjad, District Barwani, seeking the following relief: -
“(1)
That, the Hon'ble Court be pleased to issue the writ in
the nature of mandamus, order, direction, directing the respon-
dent no.1 to communicate forthwith to Respondent No.2 about
the vacancy arose on the post of the President of the Munici-
pality, Anjad on account of death of the President of Munici-
4
pality, Anjad as per Section 37 (1) of the Municipality Act,
1961.
(2)
That, the Hon'ble Court be pleased to issue the writ in
the nature of mandamus, order, direction, directing the respon-
dent no.2 to hold elections for the Post of President of Munici-
pality, Anjad at the earliest in terms of section 37 of the Mu-
nicipality Act, 1961.
(3)
That, the Hon'ble Court be pleased to issue the writ in
the nature of mandamus, order, direction, directing respondent
to nominate the President as per reservation roaster in terms of
Section 37 (2) of the Municipality Act, 1961.
(4)
That, the Hon'ble Court be pleased to issue the writ in
the nature of mandamus, order, direction, directing the respon-
dent to nominate the Councillor of Ward No.3 i.e. petitioner
No.2 to discharge power & functions of the President of the
Municipality, Anjad in terms Section 37 (2) of the Municipal-
ity Act, 1961 till the vacancy fulfilled in terms of section 37 (1)
of the Municipality Act, 1961.
(5)
Costs of this petition be awarded to the petitioner.
(6)
Any other relief, which the Hon'ble Court deems fit in
the facts and circumstances of the case, be granted to the peti-
tioner.”
2.
The petition has been subsequently amended and order
dated 28.06.2021 (Annexure P/10) passed by respondent / State of
Madhya Pradesh, appointing Smt. Manjula Rakesh Patidar, who is
nominated as the President of the Municipal Council, Anjad District
Barwani (MP), has also been challenged.
3.
In brief, the facts giving rise to the present petition are that
in the year 2018, the elections for the post of President and Councillors
for the Municipality, Anjad, District Barwani (MP) were held and on
29.01.2018, the result was declared in which Smt. Santosh Shekhar
Chand Patni was declared as the President of the said Municipality.
However, on account of spread of COVID-19, Smt. Santosh w/o
Shekhar Chand Patni suffered from Corona and passed away on
26.04.2021 (Annexure P/4). Another Councillor, (Gyarsi Bai w/o Bab-
5
ulal) of Ward No.7 also passed away on 04.08.2020. On 04.05.2021,
vide Annexure P/6 a communication was made by the Collector, Bar-
wani, who has recommended the name of Councillor of Ward No.3 (pe-
titioner No.2 herein) to be nominated for the post of President, a
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