Allowed

State of Maharashtra v. State Election Commission and Ors.

Bombay HC10 Aug 2005WP/5234/2005

Case brief

AI extract

What is this about?

The court examined the State of Maharashtra's challenge to the State Election Commission's refusal to postpone village panchayat elections flood-stricken districts. Relying on Article 243K, the court held the Commissioner had broad powers to handle emergencies and quashed the non-postponement order, directing reconsideration.

What did the court decide?

The election programme was quashed and set aside for the 13 affected districts; the Commissioner was directed to reconsider the request for postponement within two weeks.

State of Maharashtra Vs State Election… — Pension and Retirement Benefits | Bombay HC (2005)

¶1

-1-

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 Apellate Side

¶4

 Writ Petition No.5234 of 2005

¶5

 State of Maharashtra
 through the Principal Secretary
 Rural Development Department....Petitioner
 vs

¶6

 State Election Commission l& ors..Respondents

¶7

 Mr.R.S.Apte wit Mr N R Bubna for petitioner
 Mr.R.V.More for respondent no.l

¶8

 CORAM:A.P.SHAH & D.Y.CHANDRACHUD JJ.

¶9

 Dated l0.8.2005

¶10

 ORAL JUDGMENT (Per A.P.Shah J.)

¶11

 . Rule. The learned counsel for respondents waive
 service. By consent, rule is made returnable
 forthwith.

¶12

 2. This petition is preferred by the State of
 Maharashtra seeking to challenge the decision of
 the State Election Commission refusing to postpone
 the election programme for village panchayats in
 view of heavy down pour and floods in the State. A
 prayer is also made to direct the Election
 Commission to postpone/defer the election programme
 for village panchayats in l3 flood affected
 districts of Thane, Raigad, Ratnargiri, Pune,
 Solapur, Satara, Sangli, Kolhapur, Nanded,
 Parbhani, Hingoli, Jalna and Beed for a period of 3

¶13

-2-

¶14

 months or for such other period as deemed fit by
 this Court.

¶15

 3. The term of 5783 villages panchayats in the
 State is expiring in the month of September 2005.
 The Asst Election Commissioner by his communication
 dated l5th July 2005 had notified the election
 programme for the said village panchayats. As per
 this programme acceptance of nomination forms was
 to start from lst August 2005 . By communication
 dated 29th July 2005 the Asst Election Commissioner
 informed that as per Order dated 29th July 2005
 issued by the State Election Commissioner the
 revised election programme for the said village
 panchayats would start from 8th August 2005. As
 per the revised programme the date for publication
 of notice is fixed as 8th August 2005 and voting is
 scheduled on 28th August 2005. Due to heavy rains
 all over the State a number of villages, in
 particular the villages belonging to abovementioned
 l3 flood affected districts were sub-merged and
 large scale loss of life and property is caused.
 Lacs of families in the State have lost practically
 everything and have nobody to fend for them.
 Officers as well as machineries of various
 departments of the State are engaged in rescue and

¶16

-3-

¶17

 rehabilitation work. The District Collectors of
 various districts therefore informed the Election
 Commission of the situation in the flood affected
 districts and requested to postpone the election
 programme by a period of three months. By his
 communication dated 4th August 2005 the Asst
 Election Commissioner informed that it was not
 possible to postpone the election programme of
 village panchayats and directed to requisition the
 government employees to ensure smooth conduct of
 election. The District Collectors of various
 districts again informed the gravity of the
 situation and that it was not possible to divert
 officers engaged in rescue work for elections and
 requested to postpone the election programme by a
 period of three months. By the impugned
 communication dated 7th August 2005 the Asst

¶18

 Election Commissioner informed that there will not

¶19

 be any change in the election programme already

¶20

 notified and the State was bound by law to make
 necessary staff available for election work as per

¶21

 the programme.It is seen from the said
 communication that the Election Commissioner is of

¶22

 the view that the completion of the election
 programme before l5th September 2005 is necessary
 and binding as per the provisions of the

¶23

-4-

¶24

 Constitution and therefore no change can be made in
 the election programme.

¶25

 4. Mr Apte, learned counsel appearing for the
 petitioner submits that under Article 243E(3)(b)
 the Election Commissioner entrusted with election
 work had discretion to complete the election
 process either before the dissolution of the
 panchayat or within 6 months after its dissolution.
 He submits that in any event in view of large scale
 disruption caused by the natural calamity in the
 State, the Election Commissioner ought to have
 exercised discretion vested in him by law by
 postponing the election so that the rehabilitation
 work can be completed and that in no doing so, the
 Election Commissioner has acted arbitrarily. Mr
 Apte urged that the election of the local self
 government cannot be given precedence over the
 rehabilitation work. People not having food,
 clothing or shelter cannot be expected to exercise
 their franchise. Mr.More, learned counsel
 appearing for respondents, on the other hand,
 submits that the period of panchayats is expiring
 in September 2005 and in view of Article 243E(3)(a)
 the Election Commissioner has no discretion to
 postpone the election . Mr.More submits that

¶26

-5-

¶27

 clause (b) of Article 243E(3) on which Mr. Apte
 has placed reliance would apply only to cases of
 sooner dissolution of panchayat.

¶28

 5. It is true that Article 243E(3)(a) casts a
 statutory duty to complete constitution of
 panchayat before the expiry of its duration
 specified in sub-clause (l) of Article 243E.

¶29

 However, the Election Commissioner, has apparently,
 overlooked the provisions of Article 243K which
 entrusts the work of superintendence, direction and
 control of conducting the elections to the
 panchayats in the State Election Commissioner. The
 provisions of Article 243K are pari materia with
 Article 324 and vest wide powers in the Election
 Commissioner to cope with unforeseen contingencies
 such as flood, earthquake etc or urgent situation
 prevailing in the State for which elections cannot
 be held within the time frame. Article 243K
 operates in areas left unoccupied by the
 legislation and the words ‘superintendence,
 direction and control’ as well as ‘conduct of
 elections’ are the broadest terms. It is well

¶30

 settled that the power of the Election Commissioner

¶31

 is plenary in character in exercise thereof. In
 statutory provisions,it is known that every

¶32

-6-

¶33

 contingency could not be foreseen or anticipated
 with precision, therefore, the Commissioner, can
 cope with a situation where the field is unoccupied
 by issuing necessary orders.

¶34

 6. The scope of Article 324 was considered by the
 Supreme Court in the case of Digvijay Mote vs Union
 of India, (l993) 4 SCC l75 and it was held that the
 conduct of election is in the hands of the Election
 Commissioner who has the power of superintendence,
 direction and control of elections vested in him as
 per Art 324 of the Constitution. Consequently if
 the Election Commission is of the opinion that
 having regard to the disturbed conditions of a
 State or a part thereof, free and fair elections
 cannot be held he may postpone the same.
 Accordingly it was held that on account of

¶35

 unsettled conditions, the election in the States of
 Assam and Jammu and Kashir could be postponed. It
 was held that this power is not unbridled and
 judicial review will still be permissible over the
 statutory body exercising its functions affecting
 public law rights.

¶36

 7. We may also refer to the observations of the
 Constitution Bench in Mohinder Singh Gill vs Chief

¶37

-7-

¶38

 Election Commissioner l978(l) SCC 405 wherein
 Krishna Iyer J, speaking for the Bench observed
 (pp. 43l-32 paras 38-39):

¶39

 " Article 324, which we have set out earlier

¶40

is a plenary provision vesting the whole
responsibility for national and State
elections and, therefore, the necessary
powers to discharge that function.It is true

¶41

 that Art 324 has to be read in the light of
 the constitutional scheme of the l950 Act
 and the l96l Act. Sri Rao is right to the
 extent he insists that if competent
 legislation is enacted as visualised in Art
 327 the Constitution cannot shake itself
 free from the enacted prescriptions. After
 all, as Mathew J. has observed in Indira
 Gandhi:

¶42

 "In the opinion of some of the judges
 constituting the majority in Bharati case
 Rule of Law is a basic structure of the
 Constitution apart from democracy.

¶43

 The rule of law postulates the pervasiveness
 of the spirit of law throughout the whole

¶44

-8-

¶45

 range of government in the sense of
 excluding arbitrary official action in any
 sphere.

¶46

 And the supremacy of valid law over the
 Commission argues itself. No one is an
 imperium in imperio in our constitutional
 order. It is reasonable to hold that the
 Commissioner cannot defy the law armed by
 Art 324. Likewise, his functions are
 subject to the norms of fairness and he
 cannot act arbitrarily. Unchecked power is
 alien to our system.

¶47

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 Art 324 to take care of
surprise situations. That power itself has
to be exercised, not mindlessly nor mala
fide, nor arbitrarily nor with partially but
in keeping with the guidelines of the rule
of law and not stultifying the Presidential
notification nor existing legislation. More
is not necessary to specify, less is

¶48

-9-

¶49

insufficient to leave unsaid.Art 324, in our
view operates in areas left unoccupied by

¶50

legislation and the words

¶51

 ‘superintendence,direction and control’ as

¶52

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

¶53

election."

¶54

 (emphasis supplied)

¶55

 8. It is not disputed before us that heavy rains
 and floods have disrupted the normal life in the
 State. Lacs of families in the State have lost
 everything and do not have food, clothes shelter,
 medicines, and other necessities of life and have
 nobody to fend for them. In these circumstances,
 it is the duty of the State to provide such
 necessities to alleviate the plight of affected
 citizens. Therefore we find substance in the
 submission of State that if the the State machinery
 and in particular police force, revenue and rural
 development personnel is diverted from
 rehabilitation to election work,it would give rise
 to large scale resentment in people and will create
 law and order problem. Loss caused by the recent

¶56

 -10-

¶57

 down pour and flood is enormous and it will take
 some time before relief work can be completed. The
 Election Commissioner, however,rejected the
 representation of the State on erroneous assumption
 that he has no power to postpone election in view
 of the mandatory provisions of Art 243E. The
 Election Commissioner has failed to notice Art 243K
 which empowers him to postpone the elections in
 case of genuine supervening difficulties,for
 example unforeseen calamities like floods,
 earthquake etc. In our opinion the ends of justice
 would be served if the State Election Commissioner
 is directed to reconsider the representation made
 by the State for postponement of election in the
 light of Art 243K of the Constitution and take
 appropriate decision in accordance with law within
 a period of two weeks from today. We order
 accordingly. The election programme declared by
 the State Election Commissioner in respect of
 abovementioned l3 flood affected districts is
 quashed and set aside. Rule is made absolute
 accordingly with no order as to costs.

State of Maharashtra v. State Election Commission and Ors.

Case brief

What is this about?

What did the court decide?

State of Maharashtra v. State Election Commission and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ganesh Sahakari Grahak Sanstha Maryadit and Anr. Vs State of Maharashtra and Anr.

Smt. Neelam D. Shewale Vs Dadasaheb Bandu Shewale and Another

Ashok Dattaram Madhav Vs the Manager, Govt. Printing Press and Ors.

Darshan Lodha Vs St.Andrews High School and Ors.

Laxman Shankar Kaledhonkar Vs Balasaheb Sadashiv Patil (Hon'Ble Secretary) and Ors.

Manikrao Ishwar Salunkhe Vs the State of Maharashtra and Ors.