High Court
Facts
( 1 ) 902 wp 7958.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD902 WRIT PETITION NO. 7958 OF 2025DNYANDEO NIVRUTTI GAWAREVERSUSSTATE OF MAHARASHTRA THROUGH PRINCIPAL SECRETARY AND OTHERSWITHWRIT PETITION NO. 7047 OF 2025SHAIKH AFSAR NAWABODDINVERSUSSTATE OF MAHARASHTRA THROUGH PRINCIPAL SECRETARY AND OTHERSAND984 WRIT PETITION NO. 8321 OF 2025NAVNATH MOTIRAM SHIRALE AND ANOTHERVERSUSSTATE OF MAHARASHTRA THROUGH PRINCIPAL SECRETARY AND OTHERSAND1046 WRIT PETITION NO. 1963 OF 2025SHAIKH AFSAR NAWABODDINVERSUSSTATE OF MAHARASHTRA THROUGH PRINCIPAL SECRETARY AND OTHERS…..Sr. Advocate for the Petitioner in WP/7958/25: Mr. V.D. Hon i/b. Shaikh Tarek MobinAdvocate for the Petitioner in WP/7047/25: Mr. Mukul Kulkarni i/b. Shaikh Tarek MobinAdvocate for the Petitioner in WP/8321/25 : Mr. C.V. Thombre
Legal Reasoning
( 4 ) 902 wp 7958.25C)Hold and declare that, the work of ward formation declared infurtherance to 2022 election for Pathri Municipal Council is legal andvalid and the impugned notification dated 10.06.2025 along withcommunication dated 14.05.2025 contemplating fresh electionprocess is illegal, arbitrary and contrary to order dated 04.05.2022passed by the Hon'ble Supreme Court in S.L.P. No. 19756/2021 andfor that purpose issue necessary orders;D)Issue Writ of mandamus and/or any other appropriate Writ inlike nature thereby direct the Respondent No.2-Election Commissionto conduct the Election for Pathri Municipal Council by commencingthe election work from the stage it was stalled by the RespondentNo.2 vide stay notification dated 14.07.2022 as per decision ofHon'ble Supreme Court in S.L.P. No. 19756/2021 and for thatpurpose issue necessary orders;E) Pending Hearing and Final disposal of this Writ Petition theeffect, Execution and implementation of impugned notification dated10.06.2025 along with communication dated 14.05.2025 may kindlybe stayed during pendency of this Writ Petition.F) Any other suitable and equitable relief may kindly be grantedin favour of the petitioner.”4.The Petitioners in Writ Petition Nos.1963/2025 and8321/2025, have raised an ancillary issue with regard to the question as towhether the elections to the local bodies would have to be conducted byapplying the position of law with regard to election of the President of theMunicipal Councils as prevailing prior to amendment brought about on14.07.2022. It is a matter of record that prior to amendment the electionof the President of the Municipal Council was by voting amongst the ( 5 ) 902 wp 7958.25elected councilors and after the amendment the election of the President ofthe Municipal Council is by way of direct election.5.We have considered the rival submissions. While the learnedcounsel for the Petitioners in these Writ Petitions vehemently submittedthat the impugned steps being taken by the State and the State ElectionCommission are in the teeth of the order passed by the Hon’ble SupremeCourt, according to the learned Advocate General appearing for the Stateand the learned senior counsel Mr. S.B. Deshpande appearing for the StateElection Commission, the steps being taken on their behalf are in tune withthe directions given by the Hon’ble Supreme Court. It is submitted that, inany case, if there is any doubt in the minds of the Petitioners with regard tothe same they ought to raise their grievances before the Hon’ble SupremeCourt where the matters are still pending, instead of knocking the doors ofthis Court.6.Rival submissions were made on the question of the stage fromwhich the election process would stand initiated in pursuance of the orderdated 06.05.2025 passed by the Hon’ble Supreme Court and as to whetherthe exercise of ward formation along with ascertaining of reservation forOBCs is to be undertaken afresh or the authorities are expected to proceedfrom the stage pertaining to the year 2022, as indicated by the Hon’ble ( 6 ) 902 wp 7958.25Supreme Court. Attention of this Court has been invited to Section 10 ofthe Maharashtra Municipal Councils, Nagar Panchayats and IndustrialTownships Act, 1965 and reference is also made to earlier orders passed bythe Hon’ble Supreme Court in the pending matters with regard to theelection to the local bodies in the State of Maharashtra.7.We have perused the order dated 04.05.2022 passed by theHon’ble Supreme Court in the aforesaid SLP (Civil) No.19756/2021 andconnected matters. The perusal of the said order shows that at one placethe Hon’ble Supreme Court has observed as follows:“Accordingly, the election programme of such local bodiesmust proceed and the State Election Commission is obliged to notifythe election programme within two weeks from today in respect ofsuch local bodies including to continue with the process from thestage as on 10.3.2022 on the basis of the delimitation done prior tocoming into force of the Amendment Act(s) w.e.f. 11.03.2022.In other words, the delimitation as it existed prior to11.03.2022 in respect of concerned local bodies be taken as notionaldelimitation for the conduct of overdue elections and to conduct thesame on that basis in respect of each of such local bodies.”8.It is also found that in judgment and order dated 10.05.2022passed by the Hon’ble Supreme Court in Writ Petition (Civil) No.278/2022Suresh Mahajan V/s. State of Madhya Pradesh and Anr., certain
Arguments
( 2 ) 902 wp 7958.25Advocate for the Petitioner in WP/1963/25 : Mr. Sayyed Tauseef YaseenAdvocate General / GP for Respondent/State : Dr. Birendra Saraf a/w. A.B. GiraseSr. Advocate for Resp./SEC : Mr. S.B. Deshpande i/b. Ajit Kadethankar a/w.Priyanka Deshpande…..CORAM : MANISH PITALE &Y.G. KHOBRAGADE, JJ.DATE :10th July, 2025P.C. :-1.These four petitions have been urgently taken forconsideration in the light of the order dated 06.05.2025 passed by theHon’ble Supreme Court in Special Leave to (Civil) No.19756/2021 (RahulRamesh Wagh V/s. The State of Maharashtra) and connected matters. Inthe said order, the Hon’ble Supreme Court expressed its concern withregard to the delay in conducting elections to local bodies in the State ofMaharashtra. After considering the contentions raised before it, the Hon’bleSupreme Court directed that, without prejudice to the issues raised by rivalparties, elections to the local bodies in the State of Maharashtra ought tobe conducted at the earliest with an endeavor being made to conclude theelections within a period of four months. A period of two months hasalready elapsed and the present Writ Petitions have been filed before thisCourt in the context of steps taken by the Respondent-State as well as the ( 3 ) 902 wp 7958.25State Election Commission in the process of abiding by the aforesaiddirections of the Hon’ble Supreme Court.2.Writ Petition Nos.7958/2025 & 7047/2025 were listed forconsideration on 04.07.2025. Considering the urgency of the matter thisCourt directed listing of the said petitions today, with time being grantedto the State as well as the State Election Commission to take urgentinstructions in the matter. Writ Petition Nos.1963/2025 and 8321/2025are also taken up for consideration, in the light of the fact that these twopetitions also raise concern of the Petitioners with regard to the manner inwhich the State as well as the State Election Commission are proceeding toinitiate the process of conducting elections to the local bodies in the Stateof Maharashtra, particularly in the backdrop of the aforesaid order dated06.05.2025 passed by the Hon’ble Supreme Court.3.The Petitioner in Writ Petition No.7958/2025 has approachedthis Court for the following reliefs: “A)The present Writ Petition may kindly be allowedB) Quash and set aside the impugned notification dated10.06.2025 along with communication dated 14.05.2025 issued by theRespondent No.2-State Election Commission by issuing Writ ofmandamus and/or any other Writ in like nature and for that purposeissue necessary orders;
Decision
( 7 ) 902 wp 7958.25observations were made that were specifically made applicable to the Stateof Maharashtra also. The said observations are as follows:“12.Therefore, we direct the State Election Commission by wayof interim order, to issue election programme without any furtherdelay on the basis of the wards as per the delimitation done in theconcerned local bodies when the elections had become dueconsequent to expiry of 5 (five) years term of the outgoing electedbody or before coming into force of the impugned AmendmentAct(s) whichever is later. On that notional basis, the State ElectionCommission ought to proceed without any exception in respect ofconcerned local bodies where elections are due or likely to be due inthe near future without waiting even for the compliance of triple testby the State Government for providing reservation to OtherBackward Classes. We have no manner of doubt that only suchdirection would meet the ends of justice and larger public interestsconsistent with the constitutional mandate that the local self-government must be governed by the duly elected representativesuninterrupted except in case of its dissolution before expiry of theterm on permissible grounds.13. For, until the triple test formality is completed "in allrespects" by the State Government, no reservation for OtherBackward Classes can be provisioned; and if that exercise cannot becompleted before the issue of election programme by the StateElection Commission, the seats (except reserved for the ScheduledCastes and Scheduled Tribes which is a constitutional requirement),the rest of the seats must be notified as for the General Category.”9.It is undisputed that the aforesaid SLP and connected mattershave remained pending before the Hon’ble Supreme Court, wherein a ( 8 ) 902 wp 7958.25series of orders have been passed, including an order dated 22.08.2022directing status quo to be maintained in the light of the issues raised onbehalf of the rival parties inter alia, concerning the aspect of reservation forOBCs. It is only in the recent order dated 06.05.2025 that the Hon’bleSupreme Court while expressing concern about the Constitutional mandateof democracy for holding elections at the grassroots level that specificdirections were issued. Relevant portion of the said order dated 06.05.2025passed in SLP (Civil) No. 19756/2021 and connected matters reads asfollows:“5.Consequently, subject to the outcome of these proceedings andwithout prejudice to the issues raised on behalf of the rival parties, wedeem it appropriate to issue the following directions to the State ofMaharashtra/ State Election Commission:(i) The elections to the local bodies shall be notified by the StateElection Commission within four weeks;(ii) The reservation shall be provided to the OBC communities asper the law as it existed in the State of Maharashtra prior to the 2022Report of the Banthia Commission;(iii) An endeavour shall be made to conclude the elections within aperiod of four months. However, the State Election Commission shallbe at liberty to seek extension of time in appropriate cases; and(iv) The Elections shall be held subject to the outcome of theseproceedings. ( 9 ) 902 wp 7958.256.Post these matters for hearing on 16.09.2025.”10.The thrust of the submissions made on behalf of thePetitioners is that the impugned communications addressed by the StateElection Commission to the State of Maharashtra and the declaration ofelection programme by the State Election Commission are in the teeth ofthe directions issued by the Hon’ble Supreme Court, some of which havebeen quoted herein-above. The Petitioners contend that wherever wardformation had already taken place as on 10.03.2022 the clock cannot beput back and the State as well as the State Election Commission ought toproceed in such Municipal Councils from the stage post ward formation, asis clear from the directions of the Hon’ble Supreme Court. Much emphasisis placed on the above quoted directions where the Hon’ble Supreme Courtappears to be indicating that no reservation for OBCs can be provisioned.11.But, this Court cannot ignore the direction issued by theHon’ble Supreme Court in paragraph 5 (ii) in the latest order dated06.05.2025 quoted herein-above, wherein it is specifically directed thatreservation shall be provided to the OBC communities as per law as itexisted in the State of Maharashtra prior to the 2022 report of BanthiaCommission. We are of the opinion that the effect of considering thesubmissions made on behalf of the Petitioners would amount to ( 10 ) 902 wp 7958.25interpreting and clarifying the orders of the Hon’ble Supreme Court. Thesame is necessarily in the domain of the Hon’ble Supreme Court and thisCourt would not hazard a guess either way. It would not be appropriate forthis Court to consider and determine the issues sought to be raised onbehalf of the Petitioners in these petitions.12.In this backdrop, this Court is refraining from referring to,interpreting and applying Section 10 of the 1965 Act to the issues sought tobe raised by the Petitioners. As to whether accepting the interpretationplaced by the Petitioners on the orders of the Hon’ble Supreme Courtwould amount to the election programme proceeding in differentMunicipal Councils at different stages and what effect it may have on theentire process of election, are issues that need to be brought to the noticeof the Hon’ble Supreme Court. It would not be appropriate for this Courtto comment upon them and to render findings there on. Therefore, itwould be appropriate that clarification is sought from the Hon’ble SupremeCourt so that the process of election is taken forward at the earliest, whichis the concern of the Hon’ble Supreme Court itself as expressed in the orderdated 06.05.2025. It is to be noted that as per the change in the positionas it exists today the exercise of ward formation is to be undertaken by the ( 11 ) 902 wp 7958.25State instead of the State Election Commission and this is also an aspectthat may require deliberation.13.As regards Writ Petition Nos.1963/2025 and 8321/2025, theissue specifically being raised about the manner in which election to theposition of President of Municipal Councils is to be undertaken eitherdirectly or only by the elected Municipal Councilors, will also have to bebrought to the notice of the Hon’ble Supreme Court for an appropriateclarification.14.In view of the above, the Writ Petitions are disposed of withliberty to the Petitioners to approach the Hon’ble Supreme Court in orderto seek appropriate reliefs / clarification in the matters. This Court has notexpressed any opinion on the merits of the contentions raised on behalf ofthe Petitioners. Pending applications, if any, also stand disposed of. [Y.G. KHOBRAGADE, J.] [MANISH PITALE, J.]mub