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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
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7in 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 aspracticable all wards shall be compact
areas and the number of persons in each
ward according to the latest census figuresshall 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 ofsuch 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 latestcensus:
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 haveeffect 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 shallbe seats reserved for persons belonging to
the Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women, asmay be determined by the State Election
Commissioner, in the prescribed manner;
(b) the seats to be reserved for the
persons belonging to the Scheduled Castesand 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 thatarea 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 asthe 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 theScheduled 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 theScheduled 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 shallbe 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, issueinstructions 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 theConstitution 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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