Anand Mani Tewari vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 8148 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 202 of 2023
 

 
Petitioner :- Anand Mani Tewari
 
Respondent :- State Of U.P. Thru. Prin. Secy. Urban Development Civil Secrt. Lko. And Others
 
Counsel for Petitioner :- In Person
 
Counsel for Respondent :- C.S.C.,Aakash Singh
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

Heard Shri Anand Mani Tiwari, the petitioner in person who is a practicing lawyer and Shri Anand Kumar Singh, learned State Counsel representing the State - respondent no. 1.

Notice of this petition was served upon the learned Standing Counsel representing the State Election Commission way back on 02.01.2023, however it appears that after giving the notice on 02.01.2023, the petition has been presented in the registry on 17.03.2023 without intimating the learned Standing Counsel for the State Election Commission about presentation of the petition in the registry after a lapse of about two and a half months.

We may also note certain other facts which impel us to observe that the petition has been filed casually.

Description of respondent no. 3 in the writ petition is as under:-

" 3. Dedicated Commission, Civil Secretariat, Lucknow "

When asked as to what is the legal entity of respondent no. 3, the petitioner states that it is a Commission constituted by State Government for studying various aspects involved in determination of reservation to be provided to the other backward class of citizens in the State of Uttar Pradesh for the purposes of conducting elections of the Municipal Corporations and other urban local bodies of self-governance. The description of respondent no. 3 does not contain the correct / appropriate name of the Commission; neither does it contain its address and in case this Court forms an opinion to issue notices of the petition to respondent no. 3, it will be difficult for notices to be served as per the description disclosed in the array of respondents.

The petitioner when confronted with a query as to whether notice of presentation of this petition before the registry on 17.03.2023 was given to learned Standing Counsel whom notice of the petition was served way back on 02.01.2023, he informs that he attempted to contact the learned Standing Counsel telephonically, however, contact could not be established. The petitioner however admits that giving information telephonically is not the usually accepted mode of furnishing any information to any Counsel regarding proceedings in a Court of law.

We also notice that though a constitutional challenge has been made in this petition to the provisions contained in the provisio appended to Section 7(5)(1)(b)(i) of the U.P. Municipal Corporation Act, 1959 (hereinafter referred to as Act, 1959), however, the enclosure of the said provision annexed as Annexure - 1 to the writ petition does not contain the correct and complete version of the provisio appended to Section 7(5)(1)(b)(i). The manner, as aforesaid, in which this petition has been filed and is being pleaded goes on to make us opine that the instant writ petition has been filed and is being prosecuted not with requisite care.

This petition, filed ostensibly in public interest, invokes our jurisdiction under Article 226 of the Constitution of India assailing the constitutional validity of the first provisio appended to Section 7(1) of the Act, 1959. Challenge has also been made to the provisions contained in provisio appended to Section 7(5)(1)(b)(i) of the said Act.

The petitioner submits that Section 7(1) of the Act, 1959 provides that in every corporation seats shall be reserved for backward classes and number of such seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats to be filled by direct election in the Corporation, as the population of the backward classes citizens in the municipal area. In other words, it provides for reservation to the other backward classes of citizens in the seats of the Municipal Corporations in proportion to the total population in the Municipality concerned. However, the provisio appended thereto states that reservation to the backward classes shall not exceed 27% to the total number of seats in a Corporation. The submission, thus, is that this provisio is in conflict with the main provision of Section 7(1) inasmuch as, though the main provision provides for reservation in proportion to the population of other backward classes of citizens to the total population whereas provisio fixes a ceiling of providing reservation only to the extent of 27% of the seats to the total number of seats. The argument, thus, is that the provisio is in conflict with the main provision and as such is manifestly arbitrary and hence is liable to be struck down.

Similarly, in respect of Section 7(5)(1)(b)(i), it has been stated that the said provision also provides for reservation to the office of Mayors in the Municipal Corporation and the provisio appended to the main provision in this regard is also in conflict with the main provision and hence, the same is also liable to be struck down on the ground as sought to be canvassed in respect of the proviso appended to Section 7(1) of the Act, 1959.

A reference has been made by the petitioner to a judgment of Constitutional Bench of Hon'ble the Supreme Court in the case of K. Krishna Murthy and others Vs. Union of India and another; reported in (2010) 7 SCC 202. Drawing our attention to paragraph 64 of the report, it has been argued by the petitioner that in absence of any constitutional guidance as to the quantum of reservation in favour of backward classes of citizens in the local self-government units, it is the proportionate reservation which needs to be followed. He has also relied upon conclusion (iv) occurring in paragraph 82 of the judgment in the case of K.Krishna Murthy (Supra) stating that in various situations either the 50% vertical reservation ceiling will be breached or the other backward classes of citizens may not be provided any reservation. Accordingly, it has been prayed that both the provisos questioned in the writ petition run contrary to the main provision and hence are liable to be struck down.

It has also been argued that putting a ceiling, so far as reservation to the Other Backward Class is concerned, in the face of the fact that there is no ceiling so far as reservation to Scheduled Caste and Scheduled Tribe are concerned, amounts to unreasonable classification and on this count as well, both the provisos under question in this petition are not sustainable. It has, therefore, been argued that existence of these two provisos in fact give unbridled and uncanalized powers to the State Election Commission or the authority concerned which determines the quantum of reservation.

Shri Tiwari has further contended that since the other backward class communities comprise of certain members from the religious minority communities as well, hence, the offending provisos under question in this petition are also unlawful being detrimental to the interest of the minorities qua Scheduled Caste and Scheduled Tribes.

We have considered the aforesaid submissions made by the petitioner, however, we are not inclined to interfere in this writ petition at this juncture for the reasons mentioned below.

In relation to election to the urban local bodies in the State of Uttar Pradesh, a bunch of writ petitions was filed before this Court and the said bunch has been decided by a Division Bench of this Court by means of the judgment and order dated 27.12.2022 passed in Public Interest Litigation No. 878 of 2022, Vaibhav Pandey Vs. State of Uttar Pradesh. The said judgment has been taken in appeal before Hon'ble the Supreme Court and the matter is thus engaging attention of the Hon'ble Apex Court.

One of the grounds taken by the State regarding maintainability of the aforesaid bunch of writ petitions was that the petitions were not maintainable for the reason that the provisions contained in the State enactments namely the Uttar Pradesh Municipal Corporation Act and the Municipalities Act relating to providing reservation to other backward classes of citizens were not challenged. This Court repelled the said submission raised on behalf of the State and returned a finding that petitions were maintainable for the reasons given in the said judgment itself. We also notice that one of the mandates of the Constitutional Bench in the case of K.Krishna Murthy (Supra) is for the State Governments to revisit their policy of reservation to other backward class of citizens in respect of the elections of the municipal bodies including their legislative policies as well.

Though, the petitioner states that the issue raised in this writ petition is not the subject matter of the appeal pending before Hon'ble the Supreme Court against the judgment in the case of Vaibhav Pandey (Supra), however, we, for the reasons aforesaid, are not inclined to entertain this writ petition at this juncture on account of pendency of the Appeal / SLP before Hon'ble Supreme Court.

The Public Interest Litigation is accordingly dismissed at this stage.

We may, however, make it clear that this order is not to be construed as a verdict on merits on the questions raised in this writ petition.

Order Date :- 21.3.2023

Lokesh Kumar