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Mahesh Muljibhai Mistre Vs. the State of Maharashtra and Others - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 887 of 1999
Judge
Reported inAIR1999Bom404; 2000(2)BomCR846; 1999(3)MhLj844
ActsMaharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Sections 51-1A and 52; Constitution of India - Articles 16(1), 243-T(4) and 245; Constitution (Seventy-Fourth) Amendment Act, 1992 - Article 368
AppellantMahesh Muljibhai Mistre
RespondentThe State of Maharashtra and Others
Appellant AdvocateS.B. Talekar and ;Anand Bayas, Advs.
Respondent AdvocateK.B. Choudhari, A.G.P.
Excerpt:
a) the case questioned the validity of reservation for the post of chairperson of municipal council / panchayat by a scheme of rotation - the said reservation was challenged stating that single post cannot be reserved - the court held that rules pertaining to reservation in service are not applicable to these bodies - such right , being legitimate right has to go by limitations of statute and the ensuing reservation on rotation held legal by law and cannot be faulted.;b) the case debated whether the delegated power to legislature to make reservation for the post of chairperson of municipal council/panchayat on rotational basis was unguided - the court ruled that the argument was mis-conceived since the legislature is not exercising any delegated powers but its own constitutional powers..........on. the second ground of challenge is that the constitutional amendment gives discretion to the state legislatures whether to reserve such post or not. it is submitted that though some legislatures have incorporated statutory amendments making reservations, some legislatures have not yet done so.4. this court in writ petition no. 3748 of 1998 vinayakrao gangaramji deshmukh v. p.c. agrawal, returning officer, gram panchayat, sanglood,decided on 1st december 1998 (nagpur bench), to which one of us, chapalgaonkar, j., was a party, dealt with a similar contention based on the judgment of the supreme court in the case of post-graduate institute, cited supra, in the context of reservations of the post of sarpanchas in the village panchayats; and has held as under :the reservation in public.....
Judgment:
ORDER

N.P. Chapalgaonker, J.

1. This petition challenges the validity of section 51-1A and section 52 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; and also of Article 243-T(4) of the Constitution of India.

2. The terms of office of the Chairperson of a Municipal Council was conterminous with the term of elected Councillors. By Maharashtra Act No. 41 of 1994, the said term was reduced to one year. It is contended that, in most of the local bodies, the term of office of the Chairperson is coterminous with the office of the Members, and reducing such term in the case of Municipalities in Maharashtra would be unreasonable. The second proviso to section 52 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as 'the Act'), which reads that, if a person is elected as a President to fill the casual vacancy of the office of the President, as provided in sub-section (8) of section 51, he shall continue in office of the President only so long as the person in whose place he is elected would have been entitled to continue, if such vacancy had not arisen. This proviso is also challenged on the ground that a person elected in a vacancy which is a casual one arising out of the death, or, resignation, removal, or, similar reason for removal of the President, would be entitled to continue only for the remainder of the term and he is denied opportunity to enjoy the office for the full term. A casual vacancy can always be distinguished from a regular vacancy and since the rosters of reservation of Chairpersons are made applicable under the provisions of the Act, a casual vacancy will have to be treated differently and a reservation in favour of a particular class will have to continue for the whole year, as provided in the rosters and the person from the same category will have to be elected to see that the category has reservation for a full term. It is for this reason that the Legislature appears to have inserted this proviso.

3. The reservation of the post of Chairperson under Article 243-T of the Constitution of India is also challenged before us. The challenge is twofold: firstly, it is submitted that there is only one Chairperson's post in every Municipal Council and reservation of a single cadre post is impermissible. In support of this proposition, the judgment of the Supreme Court in the case of Post-Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association & others, : [1998]2SCR845 , relied on. The second ground of challenge is that the Constitutional amendment gives discretion to the State Legislatures whether to reserve such post or not. It is submitted that though some Legislatures have incorporated statutory amendments making reservations, some Legislatures have not yet done so.

4. This Court in Writ Petition No. 3748 of 1998 Vinayakrao Gangaramji Deshmukh v. P.C. Agrawal, Returning Officer, Gram Panchayat, Sanglood,decided on 1st December 1998 (Nagpur Bench), to which one of us, Chapalgaonkar, J., was a party, dealt with a similar contention based on the judgment of the Supreme Court in the case of Post-Graduate Institute, cited supra, in the context of reservations of the post of Sarpanchas in the village panchayats; and has held as under :

The reservation in public bodies like Panchayats and Municipalities was hereinbefore governed by the relevant Statutes, which the State Legislature has passed and it was held to be permissible. Now, after the seventy-third and seventy-fourth Constitutional amendments, the constitution of local bodies has been granted a constitutional protection and Article 243-D mandates that a seat shall be reserved for the Scheduled Caste and Scheduled Tribe in every Panchayat and Sub-Article (4) of the said Article 243-D also directs that the offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. Therefore, the reservation in the local bodies like the village Panchayat is not governed by Article 16(4), which speaks about the reservation in the public employment, but a separate constitutional power directs the reservation in such local bodies. It is natural that in every local body, the post of Chairperson shall be only one. Observation of the Supreme Court in the case of Post-Graduate Institute of Medical Education & Research, cited supra, that the single post cannot be reserved even by rotation of roster point, is not applicable.

5. An elective post in a body like Municipal Council and a post in the service of a State can never be equated. Article 16(1) of the Constitution of India guarantees equality of opportunity in the matters of service under the State. Reservations made in service matters will have to be weighed against this Constitutional guarantee. A post of a Chairperson or any other elected post, created under the Statute, stands on a different foundation. Electoral rights, such as, right to be a voter, right to vote from a particular constituency, right to contest, right to enjoy a term of office, if elected, are all statutory rights created by the statutes and they can be enjoyed only within the framework of the statute. Such a right is not fundamental right; and is subject to the limitations imposed by the statute. Therefore, no Constitutional guarantee can be used as a touchstone to examine the reasonableness of a statutory provision in Election Law. Though the office of the Chairperson in a Municipal Council is only one, in each of such body, looking to the social inequalities prevalent in our society, Parliament in its wisdom thought it fit to amend the Constitution and thereby enabled the State Legislatures to reserve the post of Chairpersons. Now the posts of Chairperson have been reserved in favour of other categories, such as, Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women. Since such a reservation cannot be made permanently in favour of a particular category, a device of rotation was brought into play and the Chairperson's posts are rotated to different categories. To fulfil the aspirations of different sections of Society, Legislature thought it fit to reduce the term of office of the Chairpersons from five years to one year. We do not see anything unconstitutional either in the Constitutional provision or in the statutory provision. On the contrary, reservation of such posts can be justified, since it is in conformity with the aimof the Constitution of India, declared in its Preamble, namely, to secure to all its citizens, justice-social, economic and political. If equality is to be real, the inequalities prevalent in the social system will also have to be taken note of and if the Legislature thought it fit to make suitable reservations in Chairperson's posts, we do not find any fault with the Legislature.

6. A further contention is raised that a Constitutional provision, enabling the State Legislatures to reserve the post, is unguided. The Constitutional amendment does not provide a special guideline for the Legislatures. In the arguments advanced before us by Shri Talekar, learned Counsel for the petitioner the enabling power given by the Constitutional amendment to the State Legislatures to reserve the post of Chairperson was sought to be equated with the powers delegated by the Legislature to the Executive under different laws. To legislate is the function of the Legislatures and, if they delegate part of this function to the Executive Authority, such delegation of power is viewed strictly and will have to satisfy certain norms. When the Legislatures legislate under a Constitutional authority, they are exercising their powers under Article 245 of the Constitution of India; and it can never be said that it is a power delegated. Constitution has merely defined the powers of the State Legislatures. It is not that this is a power delegated to the State Legislatures; and the argument is totally ill-founded.

7. It was also sought to be submitted before us that the insertion of Part 1X-A, particularly Article 243-T, is invalid on the count that it gives an unguided discretion to the State Legislatures to reserve the seats of the Chairpersons. We do not find that the Constitution (Seventy-Fourth) Amendment Act, 1992, anywhere overstepped the powers of the amendment of the Constitution, as are embodied in Article 368. The amendment impugned does not in any way affect any of the essential elements of which the basic structure of the Constitution are sacrosanct and cannot be amendment. Similar is the case of the statutory provisions challenged before us. A Legislature has powers more or less plenary to legislate in the matter relating to subjects permitted, with a further rider that they should not violate the fundamental rights guaranteed by the Constitution. None of the challenges raised in the petition were sufficient to consider the admission of the petition.

The petition stands summarily rejected.

8. Petition dismissed.


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