ASHOK KONDIBA YENPURE Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) THE question that falls for determination in this writ petition is whether a Councillor of Municipal Corporation who is elected to a reserved seat is eligible to contest the election for the office of Mayor when it falls in the general category. In other words, the controversy is whether all the members of the Corporation, whether elected on reserved seat or general seat, are eligible for election to the office of Mayor when it falls in a general category.

(2.) THE petitioner, Ashok Kondiba Yenpure, is a Councillor of the Pune Municipal Corporation. He was elected to that post from a ward which was unreserved/open category ward. In the year 1997, the office of Mayor of the Pune Municipal Corporation was unreserved. The petitioner submitted his nomination paper for election to the said office of Mayor of Pune for the year 1997. The respondent No. 5 Mrs. Vandana Chavan, who was elected as a Councillor from a ward reserved for woman candidates, also filed her nomination for election to the office of Mayor of Pune. The nomination of the petitioner as well as respondent No. 5 were accepted by the Municipal Secretary, Pune Municipal Corporation, who was the Returning Officer for the election. The petitioner was aggrieved by the acceptance of the nomination of the respondent No. 5 by the Returning Officer. He, therefore, filed this writ petition challenging the acceptance of her nomination by the Returning Officer on the ground that having elected to the post of Councillor from a ward reserved for woman candidate she was not eligible to contest the election for the office of Mayor which was unreserved in the meantime, on 15th March, 1997, the election took place in which respondent No. 5 was elected as the Mayor of Pune. The petitioner amended his writ petition accordingly. The case of the petitioner is that a Councillor elected from a general category is only entitled to contest the election for the office of Mayor in the year in which the said office is not reserved for a specific category and is meant for a general category.

(3.) WHEN the matter came up for hearing before the Division Bench, it was submitted by the learned Counsel for the petitioner that the above controversy stood concluded in favour of the petitioner by the decisions of this Court in Writ Petition No. 3110 of 1997 (Momin Adbul Rashid v. Vilas Raghunath) decided on 23rd September 1997 reported in (Abdul Rashid v. State of Maharashtra) 1997 (3) Mh. L. J. 180, Writ Petition No. 2909 of 1997 (Smt. Kusum Pandurang Khilare v. Smt. Sushilabai Mahadeo Swami) decided on 9th July 1997 and the decision of Supreme Court in (Saraswati Devi v. Shanti Devi) 1997 (1) S. C. C. 122. The learned Counsel for the respondents, however, pointed out that the decision of the Supreme Court in Saraswati Devi (supra), which has also been relied upon and followed by this Court in the decisions referred to above, had been referred to larger Bench and the hearing of the same was also over. We were told that the decision of the larger Bench in the matter was awaited. In view of the above, learned Counsel for the parties agreed that the hearing of this writ petition should be deferred. When the matter came up for hearing on 19-12-1997, the learned Counsel for the respondents informed that the controversy stood concluded against the petitioner by the latest decision of the Supreme Court in (Kasambhai F. Ghanchi v. Chandubhai D. Rajput)1997 (7) SCALE 248 by which the earlier decision of the Supreme Court in Saraswati Devis case (supra) was reserved. The learned Counsel for the petitioner, however, did not agree with the above submission. According to him, despite the decision of the Supreme Court in Saraswati Devis (supra) case having been held not to be a good law by the Supreme Court in Kasambhai F. Ghanchi (supra), the decision of this Court where it has been held that only such candidates who belong to the general category and have been elected from wards which are earmarked or reserved for the general category candidates will alone be eligible to contest still hold good. It was submitted by the learned Counsel that the ratio of the decision of the Supreme Court in Kasambhi F. Ghanchi (supra) is not applicable to this case. In view of the above stance of the learned Counsel for the petitioners, the Division Bench taking up this matter felt that this case may be decided by a larger Bench. The matter was, accordingly, placed before the learned Chief Justice for appropriate order. It is in this context that under orders of the Honble Chief Justice this matter has been placed before this Bench.