asdb-ldvc-188-2020.doc

DDR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION ST.NO.230 OF 2021

(CIVIL WP-LD-VC-329 OF 2020)

(Transferred from Original Side WP-LD-VC-187/2020)

VIDYADHAR MOKAL & ORS ..PETITIONERS

V/S.

STATE OF MAHARASHTRA & ANR. .. RESPONDENTS

Mr. Shyam Dewani i/by Dewani Associate for the petitioner.

Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w. Mr.Akshay

Shinde,

‘B’ Panel a/w. Ms. Nisha Mehra, AGP for the respondent – State.

Mr. Ajit Kadethankar for State Election Commission.

ALONG WITH

WRIT PETITION ST.NO. 96313 OF 2020

(CIVIL WP-ASDB-LD-VC-188 OF 2020)

VILAS D KUNJIR & ANR. ..PETITIONERS

V/S.

STATE OF MAHARASHTRA .. RESPONDENT

Mr. G.S. Godbole i/b. Shivani Samel a/w. Deepashikha Godbole for

the

petitioners.

Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w. Mr.Akshay

Shinde,

‘B’ Panel a/w. Ms. Nisha Mehra, AGP for the respondent – State.

Mr. Ajit Kadethankar for State Election Commission.

ALONG WITH

WRIT PETITION ST.NO.99711 OF 2020

(CIVIL WP-ASDB-LD-VC-268 OF 2020)

HARSHADA ARUN BHAMRE & ORS ..PETITIONERS

V/S.

STATE OF MAHARASHTRA ..RESPONDENT

Mr. G.S. Godbole i/b. Shivani Samel a/w. Deepashikha Godbole for

the

petitioner.

Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr. Akshay

Shinde,

‘B’ Panel a/w. Ms. Nisha Mehra, AGP for the respondent – State.

Mr. Ajit Kadethankar for State Election Commission.

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CIVIL WRIT PETITION NO. 3462 OF 2020

(Transferred from Aurangabad)

SARPANCH GRAM SANSAND MAHA SANGHA

THROUGH ITS STATE PRESIDENT

NAMDEV KONDAJI GHULE & ORS ..PETITIONERS

V/S.

STATE OF MAHARASHTRA & ORS ..RESPONDENTS

ALONG WITH

INTERIM APPLICATION ST.NO. 516 OF 2021

(CIVIL APPLICATION STAMP NO.12523 OF 2020

Aurangabad Bench - INTERVENOR)

IN

CIVIL WRIT PETITION NO. 3462 OF 2020

SHARAD S/O KALYANRAO JADHAV ..APPLICANT

V/S.

STATE OF MAHARASHTRA ..RESPONDENTS

ALONG WITH

INTERIM APPLICATION ST.NO.543 OF 2021

(INTERIM APPLICATION NO. 2 OF 2020)

IN

WRIT PETITION NO. 3462 OF 2020

SARPANCH GRAM SANSAND

MAHA SANGHA THROUGH ITS STATE

PRESIDENT NAMDEV KONDAJI GHULE & ORS ..APPLICANTS

V/S.

STATE OF MAHARASHTRA ..RESPONDENTS

Shri S B Talekar a/w. Madhavi Ayyappan i/by Talekar & Associates

for petitioners and applicants in IA No. 2 of 2020.

Mr. A.A. Kumbhakoni, AG a/w. Mr. P.P. Kakade, GP a/w Mr.Akshay

Shinde, ‘B’ Panel a/w. Ms. Nisha Mehra, AGP for the respondent –

State.

Mr. Ajit Kadethankar for State Election Commission.

Mr. Sandip Andhale for the applicant in Civil Application St. No.

12523 of 2020.

Mr. Shivaji Shelke for Respondent No. 3.

ALONG WITH

WRIT PETITION ST.NO.244 OF 2021

(CIVIL LDVC-CW- NO. 641 OF 2020)

(transferred from Nagpur Bench)

HARISH JAGNATH DHAWAS & OTHERS ..PETITIONERS

V/S

STATE OF MAHARASHTRA & ORS ..RESPONDENTS

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Mr. Anand Deshpande a/w Mr. Kalyan Kumar for the Petitioners.

Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr.Akshay

Shinde, ‘B’ Panel a/w, Ms. Nisha Mehra, AGP for the respondent-

State.

Mr. Ajit Kadethankar for State Election Commission.

ALONG WITH

WRIT PETITION ST.NO.237 OF 2021

(CIVIL WP ASDB-LDVC- 277 OF 2020)

VILAS D KUNJIR & ANR. ...PETITIONER

V/S

STATE OF MAHARASHTRA ... RESPONDENT

Mr. G.S. Godbole i/by Ms. Deepashikha Godbole and Ms. Shivani

Samel for the Petitioner.

Mr. A A Kumbhakoni, AG a/w. Mr. P P Kakde, GP a/w Mr.Akshay

Shinde, ‘B’ Panel a/w, Ms. Nisha Mehra, AGP for the respondent-

State.

Mr. Ajit Kadethankar for State Election Commission.

….....…

CORAM : S.S.SHINDE &

M.S.KARNIK, JJ.

RESERVED ON : NOVEMBER 23, 2020.

PRONOUNCED ON : APRIL 1, 2021

JUDGMENT:

Rule. Rule is made returnable forthwith. Heard fnally with

the consent of the learned counsel appearing for the parties.

2.This group of Petitions is being disposed of by a common

judgment and order as a common issue is involved and argued.

By this Petition fled under Article 226 of the Constitution of India

the petitioners pray for a declaration that the impunged

Ordinance No.10 of 2020 i.e. the Maharashtra Village Panchayats

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(Amendment) Ordinance, 2020 (hereinafter referred to as ‘the

Ordinance’ for short) is unconstitutional and/or ultra vires the

provisions of the Maharashtra Village Panchayats Act, 1959

(hereinafter referred to as ‘the said Act’ for short).

3.The petitioners have further prayed for the directions to the

State to forthwith withdraw and/or cancel the impugned

Government Resolution (‘G.R.’ for short) dated 13

th

July, 2020

issued by the Rural Development Department and also the

impugned G.R. dated 14

th

July, 2020 issued by the Rural

Development Department and/or for quashing thereof.

4.In view of the subsequent developments during the course

of hearing of this Petition, the petitioners have restricted their

challenge presently only as regards the G.R. dated 13

th

July, 2020

which provides for appointment of administrator for the

Grampanchayat by the Chief Executive Ofcer (‘CEO’ for short) of

the respective Zilla Parishad in consultation with the Guardian

Minister of the respective district. According to the petitioners,

seeking advice of the Guardian Minister before appointing an

administrator will defeat the constitutional scheme of free and

fair elections.

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5.The facts of the present Petition in brief are as under :-

On 17

th

March, 2020, on account of Covid-19 pandemic, the

Maharashtra State Election Commission issued orders for

postponement of the elections of Gram Panchayats in the State

where the process of elections had reached. Due to pandemic, it

was not possible to conduct fresh elections in all Gram

Panchayats where the tenure of the earlier elected committee

had come to an end.

6.By the impugned ordinance, the respondent – State has

amended the said Act by exercising powers under Article 213 (1)

of the Constitution of India on the ground that there existed an

emergency warranting issuance of an ordinance and thereby

amending Section 151 of the said Act by adding second proviso

to sub-clause (c) of sub-section (1) of Section 151 of the said Act.

By this amendment it is provided that in case it is not possible to

conduct elections of Gram Panchayat/s according to the schedule

fxed by the State Election Commission (‘SEC’ for short) on

account of any natural calamity or emergency or war or fnancial

emergency or administrative difculties or pandemic ; the

Government can appoint any person as ‘Administrator’ of such

Gram Panchayat.

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7.After the ordinance came to be issued, the respondent

issued G.R. dated 13

th

July, 2020 whereby the CEO of the Gram

Panchayat is empowered to appoint administrator on the advice

of the concerned Guardian Minister. The challenge in this petition

is now restricted to the G.R. dated 13

th

July, 2020 to the extent of

seeking advice of the concerned Guardian Minister. It is the

contention of the petitioners that for ensuring free and fair

elections, the role of the Guardian Minister in the matter of

appointment of an administrator has to be eliminated and to that

extent the impugned G.R. dated 13

th

July, 2020 needs to be

struck down.

8.Learned counsel contended that by virtue of the impugned

G.R. dated 13

th

July, 2020, the Guardian Minister of a particular

district would decide as to who should be appointed under the

amended proviso as a person in charge of the Gram Panchayat.

According to counsel, this clearly defeats the constitutional

mandate in more than one way. In the frst place due to such

uncontrolled power, the ruling party would be in a position to

defeat the wish of the majority of the population in a village.

Secondly, the impugned G.R. would confer unrestricted and

uncontrolled authority on the concerned Guardian Minister of the

District to appoint any person of his choice as Administrator in

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respect of the village panchayats whose tenure has come to an

end. The Guardian Minister will be in a position to appoint person

of his choice and thereby efectively take control of the Gram

Panchayat. Though under the impugned G.R., the CEO is

empowered to appoint an administrator, but the step of seeking

advice of the Guardian Minister would be counter productive to

the object of free, fair and impartial elections.

9.Our attention is invited to the various provisions of the said

Act and the rules framed thereunder in support of the contention

that the State Government has no power to issue the G.R.

providing for the CEO seeking advice of the Guardian Minister

before appointing an administrator. Learned counsel also relied

upon the relevant constitutional provisions in support of their

contentions. Learned counsel relied upon the following decisions

of the Hon’ble Supreme Court and this Court in support of their

contentions :-

i)A.R. Antulay vs. Ramdas Sriniwas Nayak & anr.

1

ii)State of Bihar vs. Upendra Narayan Singh & ors.

2

iii)Kerala Samsthana Chethu Thozhilali Union vs. State

of Kerala & ors.

3

1(1984) 2 SCC 500

2(2009) 5 SCC 65

3(2006) 4 SCC 327

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iv)State of Punjab & anr. vs. Brijeshwar Singh Chahal &

anr.

4

v)Charan Sovinda Waghmare vs. Chairman and Works

Committee, Zilla Parishad, Bhandara, Tahsil &

District Bhandara.

5

v)State of Maharashtra vs. State Election Commission

& ors.

6

vi)State of Tamil Nadu & ors. vs. K. Shyam Sunder &

ors.

7

SUBMISSIONS OF LEARNED COUNSEL FOR STATE

ELECTION COMMISSION :

10.Learned counsel for the SEC supported the stand of the

petitioners that the Guardian Minister ought not to have a say in

the matter of appointment of an administrator. He relied

extensively on the decision of this Court in the case of State of

Maharashtra vs. State Election Commission & ors. (supra).

SUBMISSIONS OF LEARNED ADVOCATE GENERAL ON

BEHALF OF THE STATE GOVERNMENT :-

11.Learned Advocate General frstly made submissions as to

the role of the SEC. The SEC is concerned with fairness and

4(2016) 6 SCC 1

5(2012) 4 Bombay CR 40

62006(1) Mh.L.J. 131.

7(2011) 8 SCC 737

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transperancy in the elections. SEC is not concerned with the

fairness and transperancy of the administration of the Village

Panchayats.

12.Section 10-A of the said Act is the only provision which

deals with SEC. The role provided is of superintendence, direction

and control of the preparation of the electoral rolls and for

conducting all elections. Sub-section (4) of Section 10-A is a

provision for issuing special or general orders or directions for fair

and free election and it has nothing to do with the administration

of the Village Panchayats.

13.Only because the legislative policy could have been better

or another view is possible, is no ground to interfere. It is only

when the action of the Government is dehors the provisions of

the said Act or clearly unsustainable in the teeth of the

constitutional provisions or law that the intereference is

warranted. Merely because the reasons are not assigned in the

Notifcation or GR, will not make the Notifcation or GR bad. There

is no requirement for the legislature to provide reasons while

issuing a Notifcation and therefore any delegation made with

condition is never supposed to contain reasons. The afdavit in

reply fled on behalf of the State is not to supplant or supplement

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the reasons but it is only a justifcation or logic for issuance of the

Notifcation/GR.

14.The Notifcation/G.R. was issued to overcome the unforseen

and unpleasant situation arising as a result of the Covid-19

pandemic and the present is only an interregnum stop gap

arrangement which is temporary in nature. It is not as if the State

Government is superseding the Village Panchayats for all times

to come. The State Government had to make a temporary

arrangement and appoint administrators over 15000 Gram

Panchayats which is a mammoth task, therefore, the power of

appointing administrator is delegated to the CEO of the

respective Zilla Parishads. It is the CEO who regulates all the

Village Panchayats. The role of the Guardian Minister in this

context is to be appreciated. The G.R. only provides for a

consulation/advice. The Guardian Minister is aware of the ground

realities of the District and conversant with the afairs of the

Village Panchayats and the problems faced by the people

residing there. The Guardian Minister’s role is not decisive. What

is provided is a consulation ‘before issuing the order’ and not

before ‘selecting the person’. The advice is not decisive but it is

only a nature of a consulation and cannot be read as

concurrence. The advice is not binding on the CEO.

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15.The administrators have been appointed in as many as

4000 Gram Panchayats and there is not a single instance pointed

out as to the interference of the Guardian Minister. The petitioner

has only expressed an apprehension that there is possibility of

political interference. The Courts will not interfere only on an

apprehension. The apprehension cannot make the Section,

Notifcation or G.R. illegal or bad and it can at the highest make

the action taken thereunder vulnerable. The whole idea is to keep

the Guardian Minister posted about the appointments made.

16.The consulation provided with the Guardian Minister cannot

said to be arbitrary or illegal. The State Government can

delegate its power to the CEO. Once the State Government has a

power to delegate, it follows that the State Government can

prescribe the manner in which the delegate is to exercise the

power and in these circumstances, if a consulation with the

Guardian Minister is provided, the same cannot be said to be

arbitrary or illegal.

CONSIDERATIONS :-

17.The concept of Gram Sabha is introduced by virtue of

Article 243-A of the Constitution of India. Article 243-B provides

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for constitution of Panchayat/s in every State at the village,

intermediate and district level in accordance with the provisions

of Part -IX. Article 243-C, provides for composition of Panchayat

based on the population of the local area and all seats in a

Panchayat are to be elected by the persons chosen by direct

election from territorial constitutency in the Panchayat area.

18.Article 243-E provides for duration of Panchayat and that

every Panchayat shall continue to function for 5 years from the

date appointed for its frst meeting and no longer. Article 243-E

reads thus :-

“243-E (1)Every Panchayat, unless sooner dissolved

under any law for the time being in force, shall continue for

fve years from the date appointed for its frst meeting and

no longer.

(2)No amendment of any law for the time being in

force shall have the efect of causing dissolution of a

Panchayat at any level, which is functioning immediately

before such amendment, till the expiration of its duration

specifed in clause (1).

(3)An election to constitute a Panchayat shall be

completed -

(a)before the expiry of its duration specifed in

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clause (1) ;

(b)before the expiration of a period of six months

from the date of its dissolution : Provided that where the

remainder of the period of which the dissolved

Panchanchayat would have continued as less than six

months, it shall not be necessary to hold any election under

this clause for constituting the Panchayat for such period.

(4)A Panchayat constituted upon the dissolution of

a Panchayat before the expiration of its duration shall

continue only for the remainder of the period for which the

dissolved Panchayat would have continued under clause (1)

had it not been so dissolved.”

19.Article 243-F provides for various disqualifcations for being

a member of the Panchayat. Article 243-K provides for elections

to the Panchayat and power to conduct such elections as

directed by the State Election Commission.

20.So far as the provisions of the said Act are concerned,

Section 3(9) of the said Act defnes the term ‘Gram Sabha’. The

term ‘Panchayat’ is defned in Section 3 (14). Section 7 provides

for an elaborate procedure for meetings of Gram Sabha and the

various powers and duties of Gram Sabha are prescribed by

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Section 8A. Section 10 provides for constitution of Panchayat.

Section 11 provides for election of a Panchayat and it mandates

that a election must be conducted before the expiry of duration

of 5 years prescribed in sub-section (1) of Section 27. Section 38

provides for executive power of Panchayat to be vested in the

Sarpanch who shall be directly responsible for the due fulflment

of the duties empowered upon the Panchayat and in his absence

the powers are to be exercised by Upa Sarpanch.

21.Section 151 provides for performance of powers and duties

of Panchayat not validly constituted by the person appointed by

the State Government. It would be material to quote Section 151

as the controversy of the present case revolves around the

amendment made to Section 151. Section 151 as it stood before

the issuance of the ordinance reads thus :-

“Section 151 (1) (a) Notwithstanding anything

contained in this Act or the rules or bye-laws made

thereunder, if at any time it appears to the State

Government that a panchayat has not been validly

constituted under this Act, the State Government may, by

notifcation in the Ofcial Gazette, dissolve such panchayat

and by the same notifcation or like notifcation cause all or

any of the powers and duties performed by such person or

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persons, in such manner and for such period and subject to

such conditions as it may think ft :

Provided that, on the reconstitution of the panchayat

under sub-section (2), such notifcation shall cease to have

efect from the date on which the frst meeting of the

panchayat so reconstituted is held under section 28.

(2)On the issue of such notifcation all the members of

the panchayat shall be deemed to have vacated their ofce

as members and the panchayat shall be reconstituted in

the manner provided in this Act.

(3)All the powers and duties of the panchayat exercised

and performed bonafde till the date of the notifcation

referred to in sub-section (1) by the persons who

constituted such panchayat shall be deemed to be and

always to have been validly exercised and performed by

the said persons ; and no acts done by the said persons

shall be deemed to be invalid or be called in question on

the ground merely that the persons were not members of a

validly constituted panchayat and the said person shall be

deemed to have been indemnifed and discharged from

liability in respect of such acts.”

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22.Section 176 provides for framing of various rules. Section

176(2)(xlvii) reads thus :-

“Section 176(2)(xlvii) For any other matter for which

rules are required to be made under this Act, or generally

for carrying out the purposes thereof.”

Section 182 provides for delegation of powers by the State

Government to the Commissioner or any other ofcer. Section

182 reads thus :

182. Delegation of powers. - (1) The State Government

may, be notifcation in the Ofcial Gazette, authorise the

Commissioner or any other ofcer to exercise [* * * *] any

of the powers which may be exercised by the State

Government under this Act [* *].

[ * * * * * ]

(4) Subject to the general or special orders of the State

Government, the Commissioner or Collector may delegate

to an ofcer not below the rank of Mamlatdar, Tahsildar,

Naib-Tahsildar or Mahalkari, powers exercised by the

Commissioner, or as the case may be, the Collector under

this Act.

[(5) Subject to the general or special orders of the State

Government, the Chief Executive Ofcer may delegate to

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any ofcer working under a Zilla Parishad all or any of the

powers exercisable by him under this Act.]

23.By virtue of the Ordinance, Section 151 of the said Act

came to be amended. In sub-section (1), in clause (a), after the

proviso, the following proviso was added “

“Provided further that, if due to natural calamity or

emergency or war or fnancial emergency or administrative

difculties or epidemic disease, the panchayat elections

could not be held by the State Election Commission as per

the schedule, then, the State Government may, by

notifcation in the Ofcial Gazette appoint a suitable person

as the administrator on such panchayat.”

24.By issuance of the impugned G.R. dated 13

th

July, 2020, the

State Government delegated its power for appointing a suitable

person as an administrator to the CEO of the district. The

impugned G.R. provides that the CEO has to appoint a suitable

person upon seeking advice of the Guardian Minister of the

district.

25.When this group of Petitions was heard on the earlier

occasion, there was much controversy over who is a ‘suitable

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person’. Learned Advocate General on instructions of the State

Government had then fairly submitted that only Government

servants of a particular category as far as possible would be

appointed as administrator. However, the contention of the

petitioners that while appointing such Government servant as

administrator, advice of the Guardian Minister should be

dispensed with, was not acceptable to the State Government.

This issue therefore came to be contested in the present Petition.

26.The question for consideration in this Petition is narrowed

down to deciding whether the CEO’s seeking advice of the

Guardian Minister before appointing an administrator is arbitrary

and illegal and would come in the way of free, fair and impartial

elections. Thus the petitioners do not presently challenge the

ordinance amending Section 151 of the said Act. The petitioners

also do not have any objection to the delegation of the power to

the CEO to appoint an administrator.

27.By virtue of the Ordinance, after the proviso to Section 151,

a further proviso was added empowering the State Government

to appoint suitable person as an administrator of such Panchayat.

The G.R. provides that the CEO can appoint administrator with

the advice of the Guardian Minister.

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28.A reference to the Division Bench decision of this Court in

the case of State of Maharashtra vs. State Election

Commission & ors. (supra) would prove to be useful in deciding

the present controversy. This Court considered the scope of

powers of the Election Commission under the said Act. It is held

that the powers of the Election Commission extend to the

superintendence, direction and control of the preparation of

electoral rolls and the conduct of all elections to the Panchayats.

The provisions of Article 243-K are pari materia to those of Article

324 of the Constitution which have been interpreted in several

judgments of the Supreme Court. Article 243-K operates in areas

left unoccupied by the legislation. The words 'superintendence,

direction and control' are indicative of the broad sweep of the

Constitutional provision. This is amplifed by the expression

"conduct of elections" in respect whereof the Election

Commission exercises superintendence and control. In Mohinder

Singh Gill vs. Chief Election Commission, the Supreme Court

emphasised that Article 324 of the Constitution is a plenary

provision vesting the whole responsibility for the conduct of

elections in the Election Commission. The Election Commission

may be called upon to answer unforeseen eventualities not

contemplated by existing legislation and its power of achieving

the object of free and fair elections cannot be stultifed. In this

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context, the following observations of the Supreme Court are

signifcant :

"Even so, situations may arise which enacted law has not

provided for, Legislators are not prophets but pragmatists. So it

is that the Constitution has made comprehensive provision in

Article 324 to take care of surprise situations. That power itself

has to be exercised, not mindlessly nor mala fde, nor arbitrarily

nor with partiality but in keeping with the guidelines of the rule

of law and not stultifying the Presidential notifcation nor existing

legislation. More is not necessary to specify, less is insufcient to

leave unsaid. Art 324, in our view operates in areas left

unoccupied by legislation and the words 'superintendence,

direction and control' as well as 'conduct of all elections', are the

broadest terms. Myriad maybes, too mystic to be precisely

presaged, may call for prompt action to reach the goal of free

and fair election."

29.This Court further held that a constitutional vacuum is not

contemplated in the afairs of the State. The Election Commission

has ensured that a vacuum is obviated by making arrangements

for the interregnum until the new panchayats are constituted.

Since the provisions of Section 151(1)(a) do not empower the

Government to appoint administrators beyond the expiry of the

constitutional term of fve years, it was for the Election

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Commission to step in, in the exercise of its powers under Article

243-K. That is what the Election Commission has done.

30.This Court held that the holding of free and fair elections in

a democracy is of paramount importance. The importance which

the Constitution ascribes to free and fair elections is evident from

the role and position of the Election Commission and the

conferment of wide powers upon the Commission that would

achieve this signifcant constitutional goal in a democratic

society. Administrative exigencies cannot be allowed to override

the constitutional prescription of free and fair elections. The State

Government must and shall do everything that is necessary to

cooperate with the mandate of the State Election Commission.

31.The Division Bench of this Court was dealing with the case

where the State Government had in exercise of the powers

conferred by Section 151(1)(a) of the said Act, directed that the

existing members of the Panchayats in 13 Districts shall, under

the Chairmanship of each Sarpanch, be retained to constitute a

Board of Administrators. The SEC objected to the appointment of

the original members of the Grampanchayat including of the

Sarpanch as Administrators, stating that what could not be

achieved directly could not be done indirectly. The Election

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Commission held that continuance of the erstwhile members of

the Village Panchayats would afect the conduct of elections in a

fearless, impartial and clean environment and the appointment

of ex-Sarpanchs and Members whose tenure had expired would

obstruct the electoral process. The Commission, therefore, called

upon the State Government to dismiss the Boards of

Administrators and to appoint Government Ofcers or, as the

case may be, employees as Administrators.

32.No doubt in the present case the fact situation is diferent.

The State Government has now introduced the ordinance

amending Section 151 adding new proviso and issued the

impugned circular. By virtue of the amendment to Section 151,

the State Government is now empowered to appoint a suitable

person as administrator on such Panchayat by a Notifcation in

the ofcial gazette. By GR dated 13

th

July, 2020 the State

Government delegated its powers under Section 151 (1) to the

CEO to appoint an administrator of the respective District.

Section 182 permits such a delegation. Section 182(1) empowers

the State Government to authorise the commissioner or any

other ofcer to exercise any powers which may be exercised by

the State Government under this Act. Accordingly, by GR dated

13

th

July, 2020 the CEO was authorised to exercise the powers of

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the State Government as regards appointment of an

administrator. The State Government by issuing the GR dated

13

th

July, 2020, apart from delegating the powers to the CEO

directed the CEO, to exercise the power to appoint administrator

after seeking advice of the Guardian Minister.

33.It is trite that once the process of election commences in

respect of the village panchayats whose term is come to an end,

it is then for the SEC to ensure a free and fair election. An

unprecedented situation has arisen in the present case where

due to Covid-19 pandemic the elections had to be postponed.

This Court in the case of State of Maharashtra vs. State

Election Commission & ors. (supra) which we have referred to

extensively, observed that holding of free and fair elections in a

democracy is of paramount importance. T he amendment to

Section 151 empowered the State Government to appoint a

suitable person as an administrator. These Petitions came to be

fled challenging the said ordinance as according to the

petitioners appointing a suitable person as an administrator

would confer, unfettered and unguided powers upon the State

Government to appoint the person of their choice as an

administrator. As earlier indicated, in all fairness the learned

Advocate General made a statement on instructions of the State

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Government that for the ensuing elections the Government

servants of a particular category as far as possible will be

appointed as administrator.

34.The petitioners as well as the SEC are satisfed with this

stand of the State Government. However, the stand of the State

Government that the said appointment of administrator has to be

with the advice of the Guardian Minister of the District is objected

to even by the SEC. It is a specifc stand of the SEC that to ensure

a free and fair election it is imperative that the CEO

independently exercises his power to appoint an administrator

without seeking advice of the Guardian Minister.

35.As discussed earlier, this Court in the case of State of

Maharashtra vs. State Election Commission & ors. (supra)

has observed that the State Government must and shall do

everything that is necessary to cooperate with the mandate of

the SEC. If in these circumstances it is the stand of the SEC that

the advice of the Guardian Minister ought not to be taken by the

CEO before appointing an administrator, the same deserves

acceptance as the holding of free and fair elections in a

democracy is of paramount importance. If in the opinion of the

SEC the role of the Guardian Minister in the matter of

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appointment of an administrator should be completely done

away with, we do not fnd the stand to be unreasonable or

without merit. No doubt, the power of the State Government to

appoint a suitable person as an administrator is delegated to the

CEO and this delegation of power can be conditional, but if the

conditions imposed are such that they come in the way of free

and fair elections, then the same necessarily have be struck

down as it hits at the very edifce of the constitutional scheme of

ensuring impartiality in the election process.

36.Under Sub-section 4 of Sub-section 10(a) of the said Act,

the SEC has a power to issue special or general orders or

directions for fair and free election. Learned Advocate General

submitted that this power has nothing to do with the

administration of the village panchayat. We are not in agreement

with the learned Advocate General. The process of appointing an

administrator during the interregnum when the term of the

earlier body has expired and till the new body takes over is a

power to be exercised in support of and for furtherance of the

object of a free and fair election.

37.The argument of learned Advocate General that ‘what is

provided by the G.R. is only seeking advice of the Guardian

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Minister which is not binding on the CEO of the Zilla Parishad and

therefore the apprehension expressed that the Guardian Minister

will interfere in the matter of appointment of administrators is

without any basis’, appears to be attractive at the frst blush.

However, the concept of seeking advice and the impact of the

advice of the Guardian Minister on the decision to be taken by

the CEO to appoint administrator will necessarily have to be

considered in the context of the role and responsibilities assigned

to the Guardian Minister of the particular District. The Guardian

Ministers are from the ruling dispensation. They are appointed for

every district. The constitutional scheme envisaged the

Panchayat Raj and high degree of autonomy to the Gram

Panchayats. The sheer magnitude of large number of Gram

Panchayats and their importance in a democratic set up is a good

reason why any political dispensation would be eager to gain

control and extend its hold over the Gram Panchayats.

38.To appreciate the role of the Guardian Minister it would be

necessary to refer to some of the provisions of the Maharashtra

District Planning Committees (Constitution and Functions) Act,

1998 (hereinafter referred to as 'the DPC Act' for short). The DPC

Act has been enacted to provide for constituting at the district

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level a District Planning Committee to consolidate the plans

prepared by the Panchayats and the Municipalities in the district

and to prepare a draft development plan for the district as a

whole; and to provide for matters connected therewith or

incidental thereto.

39.“Constituency” as per Section 2(a-i) means a constituency

for election to a District Planning Committee and shall consist of

the rural area constituency, transitional area constituency,

smaller urban area constituency and the larger urban area

constituency, comprising the area of Zilla Parishad, Nagar

Panchayats, Municipal Councils and Municipal Corporations,

respectively in the respective District.

As per Section 2(g) "Panchayat" means a Panchayat at

District level (Zilla Parishad) constituted under section 9 of the

Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961.

Rural area as per Section 2(j) means the area comprising

all Panchayats in a district.

The Minister-in-charge of the district is the ex-ofcio

member of the DPC in terms of Section 3(I). The CEO of the Zilla

Parishad also constitutes to be a member of the DPC as a special

invitee.

Section 10 provides for the functions of the DPC which are

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as under :-

“10. The State Government shall, by order, from the date

specifed in such order entrust to the District Planning

Committee all or any of the functions mentioned below-

(a) to consider and consolidate the District Annual Plans

prepared by the Panchayats and Municipalities in the

district and to prepare draft Development plan for the

district as a whole;

(b) to consider the Five-Year Plan and perspective plans

prepared Panchayats and the Municipalities and co-

ordinate and prepare draft Five Year Plan and perspective

development plan for the entire district;

(c) to review and monitor the progress of District Annual

Plan and suggest reappropriation of approved provision of

the District Annual Plan in accordance with the guidelines

issued by the State Government;

(d) to recommend through the Chairperson the approved

draft development plan to the State Government; and

(e) to ensure compliance of the provisions of clause (3) of

article 243-ZD of the Constitution.”

The Guardian Minister is the ex-ofcio chairperson of the

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District Planning Committee (DPC), which has to be constituted in

every district as per the law. In Maharashtra, the Guardian

Minister is appointed as the DPC Head.

40.The DPC has to tackle matters of common interest between

panchayats and municipalities, including spatial planning,

sharing of water and other physical and natural resources,

integrated development of infrastructure and environmental

conservation and the extent and type of available resources,

both fnancial or otherwise. The DPC is also expected to consult

institutions and organisations, as may be specifed, to achieve

set objectives. The Guardian Minister is expected to look into

municipal matters and the urban rural interface to assist the DPC

in planning for local resource sharing, area planning, solid waste

and sea disposal, and other such matters which call for close

coordination between panchayats and municipalities.

41.The Guardian Minister is expected to oversee the combined

budget of all local civic bodies in the jurisdiction of a district and

ensure the passing of a common draft budget for it. The Minister

is also expected to review budget implementation in every

quarter and ensure efective implementation of the sanctioned

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funds by the Union and State Government for various schemes.

Apart from the DPC, the Guardian Minister acts as the head of

canal committee meeting that discusses water management

from the available storage in the dams supplying water to district

with priority in the sequence of drinking, agriculture and industry.

The Guardian Minister also coordinates to resolve garbage

disposal issues. The minister has to facilitate land acquisition for

the mega-projects, like garbage processing plants, construction

of highways, airports, industrial area, water supply and sewage

treatment projects.

42.The CEO is appointed by the State Government under

Section 94 of the Maharashtra Zilla Parishads and Panchayat

Samitis Act, 1961. Considering the role and responsibility of the

Guardian Minister for a particular district and his signifcance,

being an integral part of the ruling dispensation, it is but obvious

that the CEO will give utmost importance to the ‘advice’ of the

Guardian Minister. Such advice which has the efect of partaking

the character of an ‘order’ would defeat the constitutional

scheme of free and fair elections. The entire object of appointing

an independent administrator is to ensure impartiality in the

election process. The CEO, though appointed by the State

Government, is a statutory authority and is duty bound to

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discharge his duties in consonance with the provisions of the Zilla

Parishad Act and the rules framed thereunder and the GRs issued

from time to time. The object of setting up of the Election

Commission is to conduct free and fair elections ruling out any

possibility of political interference in conduct of the elections. It is

therefore necessary that the CEO should have a free hand in the

appointment of an administrator without a semblance of any

political infuence in the matter of appointment of an

administrator.

43.We do not for a moment suggest that in every case the

Guardian Minister would infuence the decision of the CEO in the

matter of appointment of an administrator. Any possibility of

appointing an administrator who is likely to act in furtherance of

the political agenda and thereby aid the ruling dispensation to

get an unfair advantage in the elections needs to be avoided. In

order to ensure impartiality and fairness of the elections the

possibility of political infuence has to be ruled out. It is for this

reason that the CEO being a statutory authority be given a free

hand in the matter of appointment of an administrator to ensure

the sanctity and purity of the election process. In any case, the

CEO is appointed by the State Government, if the power is

delegated to him being a nominee of the State Government, then

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there was no requirement for incorporating a further condition of

advise of the Guardian Minister. It is therefore imperative that

procedure envisaged by the GR of seeking advice of the Guardian

Minister before appointing an administrator calls for interference.

44.It would be pertinent to also mention that now even the

elections have already been held in many of the Gram

Panchayats.

45.The Petitions therefore succeed. The impugned G.R. dated

13

th

July, 2020 to the extent of seeking advice of the Guardian

Minister in the matter of appointment of an administrator is

quashed and set aside.

46.The Petitions are partly allowed and disposed of in the

above terms.

47.In view of the disposal of the Writ Petitions, nothing survive

for consideration in the applications, if any. The applications

stand disposed of accordingly.

(M.S.KARNIK, J.) (S.S.SHINDE, J.)

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