STATE OF MAHARASHTRA Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) In these proceedings under Article 226 of the Constitution, the State of Maharashtra has called into question, directions issued by the State election Commission on 9th September 2005 and 21st September 2005 in exercise of powers conferred by Article 243-K of the constitution. The State Election Commission announced an election programme for conducting elections to 2167 Village Panchayats in thirteen flood affected Districts. The election programme commenced on 26th September 2005 and voting is to take place on 23rd October 2005. The term of the aforesaid Village Panchayats had come to an end earlier. The State Election Commission had initially declined to accede to the request of the State Government to postpone the elections in view of the serious conditions that prevailed in certain parts of the State as a result of floods. The State Government moved this Court in a petition under Article 226 of the Constitution (Writ petition 5234 of 2005) and by a decision rendered on 10th August 2005, a Division Bench of this Court held that the Election Commission was not correct in holding that it had no power whatsoever to postpone the holding of the elections even in a serious situation of a natural calamity. This Court held that the powers of the Election commission under Article 243-K in regard to the superintendence, direction and control of the conduct of elections to Panchayats is wide enough to comprehend a rescheduling of elections, where a situation in the whole or a part of the State is such as to preclude a free and fair election. The State Election Commission was directed to take a fresh decision. Accordingly, the Election Commission has fixed an election programme under which, as noted above, the election process commenced on 26th September 2005 and voting is to take on 23rd october 2005.

(2.) The State of Maharashtra issued a notification on 31st August 2005 through the Rural Development and Water Conservation Department recording that the appointment of Administrators was necessary in order to carry out the day-to-day administration of and duties in the village Panchayats until elections were over. In exercise of the powers conferred by Section 151 (1) (a) of the Bombay Village Panchayats Act, 1958, the State Government directed that the existing members of the panchayats in the aforesaid 13 Districts shall, under the Chairmanship of each Sarpanch, be retained to constitute a Board of Administrators. On 9th September 2005, the State Election Commission addressed a communication to the Principal Secretary in the Rural Development and Water Conservation Department pointing out that under Section 27 of the Bombay Village Panchayats Act, 1958, the tenure in office of each Panchayat was five years. Article 243-E of the Constitution also contains a similar provision. The Election Commission recorded that the term of office of the Village Panchayats had expired. The commission 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 Commission held that continuance of the erstwhile members of the Village Panchayats would affect 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 Officers or, as the case may be, employees as Administrators.

(3.) By a reply dated 16th September 2005, the State Government contended that it was authorised by Section 151 (1) (a) to appoint proper persons as Administrators; that even in the case of elections to the Loksabha or the Legislative Assemblies existing Governments are permitted to continue until a new Government is elected and that the board of Administrators was bound to follow the election code of conduct. On 21st September 2005, the State Election Commission thereupon issued directives in exercise of powers conferred by Article 243-K of the Constitution. The Election Commission has recorded that the appointment of the members of the erstwhile Village Panchayats whose terms had expired would obstruct the conduct of an impartial election in a fearless and clean environment and that a level ground would not be available for all the candidates contesting the elections. The Election Commission has observed that there was a likelihood that the members of the erstwhile Panchayats would try to take advantage of their posts upon being continued despite the expiry of their terms. In the circumstances, a direction has been issued to the State government to dismiss the Board of Administrators consisting of the former Sarpanchs, Upa Sarpanchs and members in 2167 Village panchayats where elections have been directed to be held and to replace them with government officers or employees. This direction of the Election Commission has been called into question by the State government.