Bombay High Court High Court

Whether Reporters Of Local Papers … vs The State Of Maharashtra on 21 August, 2008

Bombay High Court
Whether Reporters Of Local Papers … vs The State Of Maharashtra on 21 August, 2008
Bench: F.I. Rebello, K.U. Chandiwal
                               1




              WRIT PETITION NO.3648 OF 2008




                                                                 
    Date of decision:   21st August, 2008.

    For approval and signature.




                                         
    THE HONOURABLE SHRI JUSTICE F.I. REBELLO.

    THE HONOURABLE SHRI JUSTICE K.U. CHANDIWAL.




                                        
    1.   Whether Reporters of Local Papers              }
         may be allowed to see the judgment?            }

    2.   To be referred to the Reporter or not?         }




                                  
    3.    Whether Their Lordships wish to see
         the fair copy of the judgment?                 }

    4.
                    
         Whether this case involves a substantial
         question of law as to the interpretation
                                                        }
                                                        }
         of the Constitution of India, 1950 or          }
                   
         any Order made thereunder?                     }

    5.    Whether it is to be circulated to the         }
         Civil Judges?                                  }

    6.    Whether the case involves an important        }
      


         question of law and whether a copy of          }
         the judgment should be sent to Mumbai,         }
   



         Nagpur and Panaji offices?                     }





        [ S.U.Tupe ]
    Personal Assistant to
    the Honourable Judge.





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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   BENCH AT AURANGABAD.




                                                                    
              WRIT PETITION NO.3648 OF 2008




                                           
    Shri.Narendra Sacchidanand Kulkarni,
    Age: 38 years, R/o. 5920, Gujjar Galli,
    Ahmednagar.
                                .... PETITIONER




                                          
                   VERSUS

    1. The State of Maharashtra,
       through Department of Urban
       Development,Mantralaya,
       Mumbai 32.




                                    
    2. The Ahmednagar Municipal Corporation,
                   
       through its Commissioner,
       Ahmednagar, District Ahmednagar.

    3. The Deputy Commissioner,
                  
       The Ahmednagar Municipal Corporation,
       Ahmednagar, District Ahmednagar.

    4. The State Election Commission,
       Maharashtra State, Mumbai.
                                .... RESPONDENTS
      


                           ...
   



    Shri.Mukul Kulkarni, Advocate for petitioner.
    Shri.S.D.Kaldate, A.G.P. for respondent No.1.
    Shri.V.P.Latange, Advocate for respondent Nos.2
    and 3.
    Shri.S.T.Shelke, Advocate for respondent No.4.





                           ...

                        CORAM:       F.I. REBELLO, AND
                                     K.U.CHANDIWAL, JJ.
                        DATE :       21ST AUGUST, 2008.





    ORAL JUDGMENT: ( PER : F.I. REBELLO, J.)


    .     Rule.   Heard forth.




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    2.        The        petitioner       is       a     Councillor         of     the

    Ahmednagar           Municipal Corporation and was also the

Chairman of the Standing Council of the Ahmednagar

Municipal Corporation. According to the

petitioner, the petition has been filed for the

purpose of challenging the legality and the

validity of the reservations declared by

respondent No.3 for Scheduled Castes, Scheduled

Tribes, Other Backward Classes including seats

reserved for women. The petitioner has stated

that the basis for reserving the wards for S.C.,

S.T.

and O.B.C, is the respective population of

that category in the concerned ward. The

formation of wards for the Ahmednagar Municipal

Corporation is under progress and as long as the

wards are not finalised, it is not possible to

determine the population of any ward much less the

population of any particular category in that

ward. As the very basis of reservation is

population of the ward and as the population of

the ward is yet to be determined, the reserved

wards cannot be determined.

. The petitioner, therefore, by the present

petition has sought relief, to quash and set aside

the reservations for S.C., S.T., O.B.C., and women

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as notified by respondent No.3 and issue necessary

orders for the said purpose. The further relief

sought for is by way of mandamus or directions to

direct respondent Nos. 2 and 3 who are the

Ahmednagar Municipal Corporation and its Officers

to determine the reservation of the wards of the

Ahmednagar Municipal Corporation in terms of

Section 5A of the Bombay Provincial Municipal

Corporation Act, 1949, after the formation of the

wards and issue necessary orders for the said

purpose.

3. The basic contention, therefore, of the

petitioner is that unless wards are first

finalised, no reservation can be made wardwise, as

the population of S.C., S.T., and O.B.C., and like

figures in the wards would not be available.

4. Respondent No.4 is the State Election

Commission, who have filed their affidavit through

its Under Secretary. It is set out therein that

Section 5A of the Bombay Provincial Municipal

Corporations Act, 1949, hereafter referred to as

“Act”, provides that the total number of

reservations for S.C., S.T., categories be based

on the population of the said category vis-a-vis

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the total number of seats and the total

population. The seat for the concerned reserved

category is to be calculated as per the following

formula:-





                                                              
    Number of       = Population of the Total number
    Seats of reserved concerned         X of seats
    Category          category

———————————

Total population

. By applying such formula, the seats are

calculated for the S.C., and S.T., categories.

27%

less
seats

for Backward Class of

than one third seats are to be earmarked for
Citizens. Not

women including women belonging to the categories

of S.C., S.T., and Backward Class of citizens. It

is set out that the Section 5 of the Corporation

Act provides for constitution of corporation.

Sub-section (2) lays down the number of

Councillors to be elected based on the population

of the city and sub section (3) deals with the

wards into which the city shall be divided for the

purpose of wardwise election of Councillors.

Considering the provisions, it is contended that

reservation is required to be published so as to

enable the public at large, to have information

regarding reservation. Section 10 of the

Maharashtra Municipal Councils, Nagar Panchayats

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and Industrial Townships Act, 1965 makes it

mandatory on the State Election Commission to

specify the reservation in the draft notification.

It has been the standard practice of the State

Election Commission since its establishment in

1994, to declare the reservation of the wards at

the time of draft notification, in order to

appraise the citizens of the city of the

provisional reservation so as to enable them to

submit their objections and suggestions. The

State Election Commission is therefore following

the same policy
ig for Municipal Council and

Corporation, Zilla Parishad, Panchayat Samiti,

Village Panchayat elections. Also the

Delimitation Commission constituted to delimit

Legislative Assembly and Lok Sabha seats also

publishes the reservation at the time of draft

notification.

5. Ahmednagar Municipal Corporation came to be

established in 2003. In the first general

election, there were 21 wards and the wards were

multi-number electing 3 to 4 members from each

ward. Each ward was having number of different

categories i.e, Scheduled Castes, Scheduled Tribes

and Backward Class of Citizens and Women. The Act

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was amended in December 2004 by Maharashtra Act

No.16 of 2004 to provide for single member wards

for Municipal Corporations instead of multi-member

wards. Therefore, in the ensuing election, there

are 65 wards and each ward is a single member

ward. In view of the change in the number of

wards, the reservation cannot be rotated. The

petition as filed is misplaced and consequently

ought to be dismissed.

6. The State Election Commission on 20-02-2008

had addressed

a letter to the Commissioner,

Ahmednagar Municipal Corporation intimating that

the State Election Commission is approving the

draft ward formation, submitted to them by the

Municipal Commissioner’s letter of 13-02-2008.

The relevant part of the letter reads as under :

. ” The draw of lots should be conducted on

07-03-2008. At the time of drawing of lots, a map
showing all the wards should be displayed. Also
the boundaries of each ward should be explained at
the time of drawing of lots”.

7. We may now consider the relevant provisions

of the Act. Section 5(3) reads as under.

“5(3). The State Election Commissioner
shall, from time to time, by notification

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in the Official Gazette, specify for each
City the number and boundaries of the wards
into which such City shall be divided for
the purpose of the ward election of
councillors. So that, as for as

practicable all wards shall be compact
areas and the number of persons in each
ward according to the latest census figures

shall approximately be the same. Each of
the wards shall elect only one councillor.

Explanation.- For the purposes of this Act,
the expression “latest census figures”

obtaining in sub-section (3), shall mean,-

(a) the figures of the latest census
finally published and pending publication
of final figures of the latest census shall
mean the provisional figures published of

such census; and

(b) where the relevant final or provisional
figures of the latest census are not
available, the final relevant figures of
the census immediately preceding the latest

census:

Provided that, no notification issued under
sub-section (3), whether before or after
the commencement of the Maharashtra
Municipal Corporations, Municipal Councils,

Nagar Panchayats and Industrial Townships
(Third Amendment) Act, 1995, shall have

effect except for the general election held
next after the date thereof and for
subsequent elections.

Provided also that, before any notification

is issued under sub-section (3), a draft
thereof shall be published in the Official
Gazette, and in such other manner as in the
opinion of the State Election Commissioner
is best calculated to bring the information
to the notice of all persons likely to be
affected thereby, together with a notice,

specifying the date on or before which any
objections or suggestions will be received
and the date after which the draft will be
taken into consideration.

The other relevant provision is Section 5A which

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reads as under.

“5A. (1) (a) In the seats to be filled in
by election in a Corporation, there shall

be seats reserved for persons belonging to
the Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women, as

may be determined by the State Election
Commissioner, in the prescribed manner;

(b) the seats to be reserved for the
persons belonging to the Scheduled Castes

and the Scheduled Tribes in a Corporation
shall bear, as nearly as may be, the same
proportion in the total number of seats to
be filled in by direct election in the
Corporation as the population of the
Scheduled Castes or, as the case may be,

the Scheduled Tribes in that Corporation
area bears to the total population of that

area and such seats shall be allotted by
rotation to different electoral wards in a
Corporation:

Provided that, one third of the total
number of seats so reserved shall be
reserved for women belonging to the
Scheduled Castes or, as the case may be,
the Scheduled Tribes:

Provided further that, where only one seat
is reserved for the Scheduled Castes or as

the case may be, the Scheduled Tribes then
no seat shall be reserved for women
belonging to the Scheduled Castes, or as
the case may be, the Scheduled Tribes and
where only two seats are reserved for the

Scheduled Castes, or as the case may be,
the Scheduled Tribe, one of the two seats
shall be reserved for women belonging to
the Scheduled Castes, or as the case may
be, the Scheduled Tribes;

(c) the number of seats to be reserved for

persons belonging to the category of
Backward Class of citizens shall be twenty
seven percent of the total number of seats
to be filled in by election in a
Corporation and such seats shall be
allotted by rotation to different electoral
wards in a Corporation:

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Provided that, one third of the total
number of seats so reserved shall be
reserved for women belonging to the
category of Backward Class of citizens;

(d) one third (including the number of
seats reserved for women belonging to the

Scheduled Castes, Scheduled Tribes and the
category of Backward Class of citizens) of
the total number of seats to be filled in
by direct election in a Corporation shall
be reserved for women and such seats shall

be allotted by rotation to different
electoral wards in a Corporation.

(e) Notwithstanding anything contained in
clauses (a) to (d), the State Election
Commissioner may, by an order, issue

instructions for rotation of wards reserved
for the Scheduled Castes, Scheduled Tribes,

Backward Class of citizens and women in
Corporations where the number of wards have
changed after the general elections for
whatever reasons.

(2) The reservation of seats (other than
the reservation for women) under clause (b)
of sub-section (1), shall cease to have
effect on the expiration of the period
specified in article 334 of the

Constitution of India.”

. Under Section 14(2), the State Election

Commissioner may by order, delegate any of his

powers and functions to any officer of the State

Election Commission or any officer of the State

Government not below the rank of Deputy Collector

or any office of the Corporation not below the

rank of the Assistant Municipal Commissioner.

8. The State Election Commission by

notification dated 17-03-2008, has published in

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the Government Gazette, a draft order as required

by Section 5 of the Act for information of all

residents of Ahmednagar. The draft notification

sets out the number of councillors to be elected

and the number of reserved seats and further wards

in respect of which seats are to be reserved.

. Note to the notification contains the

following.





                                               
    (1).     The         reservation indicated in the              schedule

    for     the        Backward
                                ig    Class of   Citizens      and        women

    including           seats     reserved for women belonging                to
                              
    the     Scheduled           Castes, the Scheduled Tribes,               and

    Backward           Class    of    Citizens is as per         the       lots

    drawn on 07-03-2008.
      
   



    (2).     While         finalizing      the wards, if limits               of

    any     ward        are changed and due to which change                   in





    reservation            becomes      necessary       then     draw       for

    reservation will be done again.



    (3).     A         map of the Municipal Corporation showing





    limits        of     the     ward is available       during        office

    hours         for     inspection       in    the    office       of     the

    Municipal Corporation.




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    .        It      is,        therefore, clear that in terms                   of

    this     notification,             it is provisional and at                the




                                                                                     
    time     of     finalizing the wards after                 hearing         the




                                                            

objections, if limits of any wards are changed and

due to which change in reservation became

necessary, then draw for reservation will be done

again. The Election Commission has also published

the notification setting out the schedule for

consideration of the objections.

9. We

now consider the true import of Section

5A of the Act. Section 5A(1)(a) mandates that the

Election Commission shall reserve seats for the

categories set out therein. Sub-clause (b) sets

out that reservation is to be done as nearly as

may be in the same proportion to the seats to be

filled in by direct election in the Corporation as

the population of the Scheduled Castes or, as the

case may be, the Scheduled Tribes in that

Corporation area, bears to the total population of

that area and such seats shall be allotted by

rotation to different electoral wards in a

Corporation. It is thus clear that reservation is

based upon the population of the respective

category of voters in that particular ward and

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which thereafter are to be rotated. Sub-section

(3) of Section 5 sets out that the State Election

Commissioner must specify the number and

boundaries of the wards into which the City shall

be divided for the purpose of the ward election of

councillors. The exercise, therefore, for

formation of the ward and also provision for

reservation is the power conferred on the Election

Commission.





                                               
    .        Does the Section contemplate that the wards

    have     to    be
                              
                          first formed and notified                      and        only

    thereafter       reservation             has     to      be       done.          The
                             
    reservation          of     seats is based on the                  population

    which     is    normally              based on the          electoral         roll

    prepared by the Election Commission of India.                                   The
      


    wards     though geographical have also been notified
   



    by     the State Election.               The Section also provides

    for     the number of councillors in each council and





    depending       upon the population, additional                            number

    of     councillors.              In     other      wards,         as     far      as

    possible       the        area        of the ward will have                to     be

    based     on    the number of councillors,                        unless        the





    Election       Commission             provides for more              than       one

    councillor       from        one ward based on the number                         of

    seats     to    be provisionally in that ward.                           In     the




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    instant        case,        we     are not confronted          with        that

    situation        as        provisionally        the     City     has       been

    divided        into        65 wards as per draft            notification




                                                                                      

and also the reserved seats are set out.

10. In our opinion, on a plain reading of

Section 5 and 5(3) of the Act, we have absolutely

no doubt in our mind that both the formation of

wards and reservation can be done simultaneously

and the Act does not prohibit such an exercise.

The provisional formation of wards and reservation

is again

subject to the objections that may be

made before the wards are finally notified. The

submission, therefore, made on behalf of the

petitioner that reservation can only be subsequent

to the formation of the wards, in our opinion, is

misplaced. The population of the area would be

known based on the census figures and other

material including the electoral roll. Similarly,

the population of the reserved categories would

also be available. What the Election Commission

therefore does is to notify the draft wards and

draft reservation based on the material which will

only be finalized after objections filed are

considered. The exercise of power and formation

of opinion in the matter of forming wards or

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provisions for reservation is based on the

material available to the Election Commission.

11. For the aforesaid reasons, we find no merit

in this petition, which accordingly dismissed.

Rule discharged. There shall be no order as to

costs.

[ K.U. CHANDIWAL, J.] [ F.I. REBELLO, J.]

sut/u/AUG08/wp3648.08

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