Case Note & Summary
These writ petitions were filed before the Aurangabad Bench of the Bombay High Court under Article 226 of the Constitution of India. The petitioners, who were members of Zilla Parishads and Panchayat Samitis, challenged the validity of Maharashtra Ordinance No.XXII of 2019 dated 23 August 2019. The ordinance was promulgated by the Governor of Maharashtra under Article 213 to extend the terms of office bearers of certain Zilla Parishads and Panchayat Samitis, including Presidents, Vice Presidents, and Chairpersons of subject committees. The extension was necessitated, according to the preamble, by the upcoming general election to the State Legislative Assembly, which it claimed would create overlapping schedules, undue pressure on civil and police administration, law and order issues, and inconvenience to citizens, candidates, and electors. The petitioners argued that the ordinance was a fraud on the Constitution, as the legislative assembly had been in session until 2 July 2019 and no new emergent circumstances had arisen thereafter to justify the Governor's ordinance-making power. They contended that the ordinance sought to create an irreversible position and enduring rights, which was impermissible under Article 213, especially in the absence of an amendment to the parent Act, the Maharashtra Zilla Parishad Act, 1961. It was pointed out that Sections 44 and 66 of the Act, which earlier allowed extension of office until successors took over, had been consciously deleted by the 1994 amendment, indicating a legislative intent to fix a firm term of 2.5 years. The petitioners submitted that the ordinance, by not amending the statute, conflicted with it and could not override it merely by a non-obstante clause. They further argued that the ordinance violated Article 14, as it created selective discrimination and lacked a rational nexus with its stated objective. Reliance was placed on various Supreme Court and High Court judgments including Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co., Krishna Kumar Singh v. State of Bihar, Kashinath Bhide v. State of Bombay, Babaji Kondaji Garad v. Nasik Merchants Co-op Bank, and decisions emphasizing the mandatory nature of local body elections under Chapter IX of the Constitution, such as Kishansing Tomar v. Municipal Corporation of Ahmedabad and Rohan Shirodkar v. State of Goa. The petitioners also argued that the ordinance undermined the constitutional mandate of reservation rotation under Article 243D by extending the term of one category of office bearers at the cost of another. The State, through its senior counsel, defended the ordinance, arguing that it was promulgated during the recess of the legislature and that the Governor had recorded prior satisfaction as to the necessity for immediate action. The State’s arguments were cut off in the supplied judgment text. The Court heard the matters and reserved them for orders on 16 September 2019, delivering the judgment on 17 October 2019. The present extract does not contain the Court’s analysis or final decision.
Issue of Consideration
Whether Ordinance No.XXII of 2019 promulgated by the Governor of Maharashtra under Article 213 of the Constitution, extending the term of chairpersons of Zilla Parishads and Panchayat Samitis due to general elections to the State Legislative Assembly, is constitutionally valid.
Case Details
2019 LawText (BOM) (10) 20
Writ Petition No.10184 of 2019 with connected matters 10285 of 2019, 10481 of 2019, 10538 of 2019 and Civil Applications 10244/2019, 10871/2019, 10872/2019
S. V. Gangapurwala, Anil S. Kilor
Ms. P. S. Talekar, Mr. Sachin Deshmukh, Mr. P. D. Bachate, Mr. N. D. Patil Jamalpurkar for petitioners; Mr. P. M. Shah, Senior Advocate for respondents; Mr. V. R. Dhorde for applicant in CA/10244/2019, Mr. V. D. Salunke for applicant in CA/10872/2019, Mr. Ajeet B. Kale for applicant in CA/10871/2019
Dattatray Yedu Thombre, Sahebrao s/o Shrirang Dhange, Narmada Sunil Mundhe, Prakash s/o Vishwanath Ashte
The State of Maharashtra & Others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the constitutional validity of an ordinance.
Remedy Sought
Quashing of Ordinance No.XXII of 2019 and direction to hold elections for the posts of President, Vice President, Chairmen of subject committees of Zilla Parishads and Chairman and Vice Chairman of Panchayat Samitis.
Filing Reason
The ordinance was promulgated to extend the terms of these office bearers on account of the general election to the State Legislative Assembly, allegedly without sufficient emergent circumstances and in violation of the Constitution and the parent Act.
Issues
Whether the Governor's ordinance-making power under Article 213 was exercised on valid grounds of emergent circumstances.
Whether the ordinance constitutes a fraud on the Constitution by creating irreversible and enduring rights without amending the parent Act.
Whether the ordinance violates Article 14 of the Constitution due to selective discrimination and lack of rational nexus.
Whether the ordinance contravenes Chapter IX of the Constitution, particularly the mandate of regular elections and rotation of reservations under Article 243D.
Whether the ordinance, by not amending the Maharashtra Zilla Parishad Act, 1961, conflicts with the statutory provisions and is therefore invalid.
Whether the Governor was required to seek the President's assent before promulgating the ordinance, given that the parent Act had received Presidential assent.
Submissions/Arguments
Petitioners argued that the ordinance was a fraud on the Constitution as no new circumstances justified immediate action; the legislature had just ended session and the ordinance created enduring rights without amending the Act.
Petitioners contended that the ordinance violated Article 14, as previous similar situations in 2005, 2009, and 2014 did not result in such ordinances, amounting to selective discrimination, and that there was no nexus between the extension and the stated objectives.
Petitioners submitted that the deletion of Sections 44 and 66 of the Maharashtra Zilla Parishad Act, 1961, which earlier permitted extension, indicated that the legislature intended a fixed term, and the ordinance's non-obstante clause could not override the statute without amendment.
Respondents argued that the ordinance was promulgated during the recess of the legislature and that the preamble showed prior satisfaction of the Governor as to the necessity for immediate action.
(Note: The provided judgment text ends abruptly; the full arguments of the respondents are not available.)
Judgment Excerpts
The impugned ordinance is fraud on constitution.
The Ordinance cannot be used to create enduring right or irreversible position.
The conscious deletion of the provision permitting extension of the tenure of Chairman and Vice Chairman conveys that the Legislature desired a fix term
The Ordinance falls foul to the test of Article 14 of the Constitution of India.
Procedural History
The writ petitions were filed challenging Ordinance No.XXII of 2019. The High Court heard the petitioners and the respondent State, and closed the matters for orders on 16.09.2019, with the final order pronounced on 17.10.2019. The text of the judgment provided does not include the court's final decision.
Acts & Sections
- Maharashtra Zilla Parishad Act, 1961: 44, 66
- Constitution of India: 14, 213, 243D
