CHANDUBHAI DAHYABHAI RAJPUT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has filed the present petition under Art. 226 of the Constitution of India and has prayed for issuance of a writ of prohibition or any other appropriate writ, order or direction restraining respondent Nos. 1, 2 and 3 from accepting the nominations of respondent Nos. 4, 5 and 6 for the election to the office of the President. The petitioner belongs to backward class and was elected as a member of Jambusar Nagarpalika during the last election from a seat reserved for candidates belonging to backward class. By the Constitution 74th Amendment Act, 1992, Art. 243-T is inserted in the Constitution providing for reservation of seats for Scheduled Castes, Scheduled Tribes etc. Pursuant to the Constitutional amendment, the provisions of the Gujarat Municipalities Act, 1963 have been amended to provide for reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women. In exercise of powers conferred by sub-S.(1) of S.277 read with sub-S.(3) of S.33 of the Gujarat Municipalities Act, 1963, the Government of Gujarat has made Rules known as "The Gujarat Municipalities (Reservation of S.C., S.T., B.C. and Women for the Office of the President) Rules, 1994. Rule 2 of the Rules provides that office of the President of Municipality shall be reserved in favour of the Scheduled Castes, Scheduled Tribes, Backward Classes and Women in accordance with the roster shown in the Schedule. After the elections, which were held in the year 1994, for the year commencing from January 17, 1995 and ending on January 16, 1996, Smt. Khatijaben Pathan was elected as President of Jambusar Nagarpalika and thereafter for the year beginning from January 17, 1996 and ending on January 16, 1997 Shri Sikanderbeg Mirza was elected as President of the said Nagarpalika. In view of the roster shown in the Schedule appended to the Gujarat Municipalities (Reservation of S.C., S.T., B.C. and Women for the Office of the President) Rules, 1994 a person belonging to Backward Class is entitled to hold the office of President of Municipality. The election to the office of President of Municipality was scheduled to take place on January 16, 1997. The petitioner being eligible, contested the election for the said post. The petitioner reliably learnt that respondent Nos. 4, 5 and 6 who are elected as members of Municipality from the seats meant for general category, were likely to contest the election for the office of President and respondent No. 3 was likely to permit them to contest the said election by accepting their nominations. The claim of the petitioner was that as respondent Nos. 4, 5 and 6 are not elected as members of the Municipality from the seats reserved in favour of the Backward Class, they were not entitled to contest the election for the office of President.

(2.) When the petition came up for hearing as to admission before brother M. S. Parikh, J., on December 23, 1996, notice was issued making it returnable on January 6, 1997. On service of the notice, respondent No. 6 filed affidavit-in-reply on behalf of respondent Nos. 4 to 6 and controverted the statements made in the petition. At the time of hearing of the petition, it appears, it was brought to the notice of the Court that in Special Civil Application No. 649 of 1996 decided on June 27, 1996, brother N. N. Mathur, J., has taken a view that a person belonging to Scheduled Caste, Scheduled Tribe, Backward Class or Women not elected from the seats reserved in favour of the S.C., S.T., B.C. and Women is entitled to contest the election for the office of the President of the Municipality. In view of the said decision, brother J. M. Panchal, J., dismissed the petition on January 13, 1997.

(3.) The petitioner, it appears, thereafter filed a review application being Misc. Civil Application No. 274 of 1997 relying upon the decision of the Supreme Court in the case of Saraswati Devi v. Shanti Devi, 1997(1) SCC 122 wherein the Supreme Court has ruled that by virtue of rotation President is to be elected from amongst the members belonging to S.C. category, persons elected as members of the Committee from any other category (general, backward, women) even if they belong to S.C.s, would be excluded from the contest for election of President. It was, therefore, contended by the petitioner that the view expressed by the Supreme Court in the above petition filed by the petitioner being contrary to the interpretation placed by the Supreme Court in the above-referred decision, the impugned judgment deserves to be reviewed. Brother Panchal, J., heard the said review application on February 7, 1997 and after hearing the learned Counsel for the petitioner, notice was issued making returnable on February 12, 1997. Thereafter, by an order dated February 25, 1997 Rule was issued in the application making it returnable on March 19, 1997. K. F. Ganchi, respondent No. 4 in the review application (original respondent No. 6) filed affidavit-in-reply controverting the averments made in the application, but no affidavit-in-reply was filed by any other respondents controverting the averments made in the application. Brother J. M. Panchal, J., after considering the arguments advanced by the parties, and considering the law laid down by the Supreme Court in Saraswati Devi's case (supra) has taken a view that having regard to the provisions of Art. 243-T of the Constitution read with rules, there is no manner of doubt that the ratio laid down by the Supreme Court in the case of Saraswati Devi's case (supra) would be applicable to the facts of the present case and has, therefore, held that respondent No. 4 (original respondent No. 6) was not entitled to contest the election for the office of the President of the Municipality as he was not elected on a seat reserved for candidates belonging to backward class and accordingly allowed the review application by his judgment dated March 20, 1997. Consequenlty, the order dated January 13, 1997 challenged in the present petition was set aside and the office was directed to place the matter before the appropriate Court for admission and hearing. Against the said order, respondent No. 6 preferred an appeal being Letters Patent Appeal No. 348 of 1997. A Division Bench (Coram : C. K. Thakker and H. L. Gokhale, JJ.) on 3-4-1997 dismissed the appeal. The said respondent No. 6 carried the matter to the Supreme Court challenging the judgment delivered in the Letters Patent Appeal by way of Special Leave Petition (Civil) No. 9061 of 1997. On 1-5-1997, the Supreme Court permitted withdrawal of the said S.L.P. by passing the order : "Special Leave Petition dismissed as withdrawn on the statement of the learned Counsel for the petitioner."