Unknown vs The State Of Maharashtra & Ors
2011 Latest Caselaw 280 Bom

                                                         4. wp 7897-11 & 10532-11.doc

RMA     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION




                                                                                  
                          WRIT PETITION NO. 7897 OF 2011




                                                          
           Gajanan Babar & Ors                               .. Petitioners

                 Vs




                                                         
           The State of Maharashtra & Ors                    .. Respondents

ALONGWITH

WRIT PETITION NO. 10532 OF 2011

Vikas Mathkari ig .. Petitioner

Vs

The State of Maharashtra & Ors .. Respondents

Mr. P.S. Dani i/b Mr. Drupad Patil for the Petitioners

CORAM : S.A. BOBDE & SMT. V.K. TAHILRAMANI, JJ

Reserved on : 21st DECEMBER, 2011.

Pronounced on : 23rd DECEMBER, 2011.

ORDER: [ Per S.A. BOBDE, J. ]

1. Rule, returnable forthwith. Heard finally by consent of the

parties.

4. wp 7897-11 & 10532-11.doc

2. The petitioners in these petitions are the residents of Pimpri

Chinchwad Municipal Corporation and Pune Municipal

Corporation respectively. They have challenged the final

notification issued under Section 5(3) of the Bombay Provincial

Municipal Corporation Act, 1949 (hereinafter referred to as

"BPMC Act, 1949") by which the city of Pimpri Chinchwad and

Pune have been divided into various wards for the purpose of

forthcoming elections to the Municipal Corporation.

3. The main contention on behalf of the petitioners is that the

State Election Commission has committed serious error of law

in taking the population figure of 2011 for determining number

of councilors who should be elected but has taken into account

the population figure of the year 2001 for determining number

of reserved category seats even though such seats are bound

to have a certain proportion to the general population. In other

words, the contention is that though the law requires the State

Election Commission to determine the number of seats for

reserved category candidates in certain proportion to the seats

of open category candidates for the purpose of determining

the figures, the State Election Commissioner has taken into

account the population figures of the year 2001 and for the

later period, the Commission has taken into account the figures

for the year 2011. Section 5 of the B.P.M.C. Act reads as

follows :

4. wp 7897-11 & 10532-11.doc

"Constitution of Corporation - (1) Every Corporation shall, by the name of "The Municipal Corporation of the City of ...", be a body corporate and have perpetual succession and a

common seal and by such name may sue and be sued. [(2) Each Corporation shall consist of, -

(a) such number of councilors, elected directly at ward elections, as is specified in the table below"

TABLE

Population Number of Councilors

(i) Above 3 lakhs and upto The minimum number of elected 6 lakhs councilors shall be 65.

For every additional population of 15,000 above 3 lakhs, one additional ig councilor shall be provided. So however that the maximum number of elected councilors shall not exceed 85.

(ii) Above 6 lakhs and upto The minimum number of elected 12 lakhs councilors shall be 85.

For every additional population of 20,000 above 6 lakhs, one additional

councilor shall be provided. So however that the maximum number of elected

councilors shall not exceed 115.

(iii) .........

(iv) .........

Section 5A of the B.P.M.C. Act which provides for reservation of

seats reads as follows :

"(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, Schedule 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

4. wp 7897-11 & 10532-11.doc

scheduled castes and scheduled tribes in a Corporation shall bear, as nearly as may be, the same proportion to 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 the Corporation................"

From Section 5(1) of the B.P.M.C. Act, it is obvious vide table

that the number of councilors must be fixed having regard to

the population. For instance, in column (i) of the table, it is

provided that whereas the population is above 3 lakhs and upto

6 lakhs, the number of elected councilors shall be 65 and so on.

While the word, 'population' has not been defined in the said

Act, it is an admitted position that the respondent has taken

into account the population of entire Corporation area as

communicated to it by the Census Commission of India vide

letter dated 9th October, 2011. The figures communicated by

the Census Commission is 17,29,359 for Pimpri Chinchwad and

31,15,431 for Pune. However, while determining the number of

seats that shall be reserved for persons belonging to Schedule

castes and Schedule tribes, Backward Class of Citizens and

women under Section 5A, the State Election Commission, for

the purpose of Section 5A(1)(b) taken into account the

population of such Schedule castes, Schedule Tribes, backward

class of citizen which is available under the census figures of

4. wp 7897-11 & 10532-11.doc

2001 which are the latest census figures available within the

meaning of that term in the explanation of Sub-Section 3 of

Section 5 (Supra) which is reproduced hereunder for the sake

of convenience particularly (a) and (b), that figures are

10,14,598 for Pimpri Chichwad and 23,81,373 for Pune.

Sub-Section (3) of Section 5 of the B.P.M.C. Act :

"(3) The [State Election Commissioner] shall, from time to time, by notification 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 councilors [s0 that, as far 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 Councilor] [Explanation : for the purpose 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"].

4. The contention of Shri. Dani, the learned counsel for the

petitioners is that sub-section 1(b) of Section 5 (a) requires

that the number of seats which should be reserved for the

persons belonging to schedule castes and schedule tribes must

bear the same proportion to the total number of seats to be

4. wp 7897-11 & 10532-11.doc

filled in by direct election in Corporation as the population of

such caste or tribe bears to the total population of that area.

Therefore, according to the learned counsel, it is not

permissible to take into account the population of the schedule

castes and schedule tribes etc of the year 2001 and at the

same time take into account the total population of that area

from the census figures as are available in the year 2011.

Admittedly, there is increase in the total population of the area

between 2001 to 2011 and since the respondents have taken

into account the population of schedule castes, schedule tribes

etc of the year 2001, the reservation is bound to be less than

what it should be. In other words, the number of seats to be

filled in by direct election in the general open category will be

disproportionately more than the number of seats that are

available to be filled in by schedule castes and schedule tribes

etc.

5. Mr. Shetye, learned counsel for the State Election Commission

does not dispute that the proportion of reserved seats to the

general seats should be worked out on the basis of the same

population figures. Ideally, according to the learned counsel,

the number of seats for reserved category candidates in the

present election ought to have been worked out on the basis of

2011 figures which are available. However, the figures for the

year 2011 do not contain the figures of the population of

4. wp 7897-11 & 10532-11.doc

schedule castes and therefore the respondents have had to

increase the population of schedule castes and schedule tribes

in the same proportion they bear to the general population in

the year 2001. In other words, the respondent has taken into

account what was the proportion of that particular reserved

category to the general population for the year 2001 and have

increased the figures of the reserved category in the same

proportion to the general category, having regard to the figures

of the general category available in 2011.

This is apparent from the following chart:

POPULATION, TOTAL SEATS & RESERVATION IN THE MUNICIPAL CORPORATIONS ELECTIONS 2012

Sr MUNICIPAL CENSUS 2001 CENSUS TOTAL TOTAL No CORPORATION 2011 VOTERS SEATS (Appro) OLD TOTAL SC ST

6 Pune 3115431 2381373 280391 21618 2456253 144 7 Pimpri- 1729359 1014598 142537 19888 1095505 105 Chinchwad

TOTAL DIFF TOTAL WOMEN DETAILS REGARDING RESERVATION

SEATS WARD SEATS NEW NEW GEN SC ST BCC (9-8) O N O N O N O N O N 9 10 11 12 13 14 15 16 17 18 19 20 21 152 8 76 48 76 87 92 17 18 1 1 39 41

128 23 64 35 64 60 72 15 18 2 3 28 35

O = Seats in 2007 elections.

N = Seats in 2012 elections.

The above figures show that the seats for schedule castes,

schedule tribes and backward classes have been increased

4. wp 7897-11 & 10532-11.doc

(against "N" in columns 17, 19 and 21 i.e in 2012 election)

proportionately. In view of increase in the population from

columns 4, 5 and 6 which give the figures of 2001 census to

the figures in column 3 give the available undifferentiated

figures of total population in 2011.

6. It was rightly contended by Shri. Dani, learned counsel for the

petitioners that Section 5(a) of the B.P.M.C. Act which provides

for reservation of seats contemplates that the same figure of

population arrived at from the same census should be taken

into account for determining the number of seats for schedule

castes and schedule tribes. Indeed, the number of seats to be

arrived at in the same proportion which the population of

reserved category bears to the total population of that area.

As contemplated in Section 5(A) sub-section (1)(b), both the

figures of population of the reserved categories total population

must be from the said census. It would be anomalous to hold

otherwise. In the present case, however, it was impossible for

the State Election Commission to take into account the figures

of the population of reserved categories in the year 2011

census since they are not available. Only the figures of the

total population of 2011 census are available, therefore, if the

seats are to be reserved in the correct proportion, there was no

option but to take into account a notional figure which bears

same proportion of the population of schedule castes and

4. wp 7897-11 & 10532-11.doc

schedule tribes to the total population as available from the

census of 2001. We are mindful of the fact that such course

of taking a notional figure in the same proportion is not

contemplated by Section 5A which contemplates the actual

population. However, it was also urged on behalf of the

petitioners that if the figures of population of the schedule

castes and schedule tribes as obtained in the 2001 census

were to be taken into account, then the respondents ought to

have taken into account the figures of the total population as

obtained in 2001 census also.

7. Shri. Shetye, learned counsel for the State Election Commission

has submitted that if this was done, it would have reduced the

number of councilors since that number had to be determined

with reference to the existing population as provided in the

table to Section 5 (supra). Further, as a result, the proportion

of councilors to the population contemplated by law would

have been breached since the State Election Commission

would have taken into account a much smaller figure of

population i.e 1014598 for Pimpri Chinchwad and 2381383 for

Pune (2001 census) instead of 1729359 for Pimpri Chinhwad

and 3115431 for Pune vide column 4 and 3 of the chart

(Supra). We find that Article 243P(g) of the Constitution of

India defines population as follow:

" 'Population' means the population as ascertained at the last

4. wp 7897-11 & 10532-11.doc

preceding census of which the relevant figures have been published. "

That term "at the last preceding census of which the relevant figures have been published" is not defined in the B.P.M.C. Act

by the explanation to sub-section 3.

For the purpose of the B.P.M.C. 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"].

Thus, the Act under which the election in question are to be

held contemplates that if the figures of the latest census are

not finally published, then the provisional figures published in

such census should be taken into account and where neither

final nor provisional figures of the latest census are available,

final figures of the census immediately preceding the latest

census should be taken into account. Thus, the State Election

Commission has not committed any illegality in taking into

account the provisional figures of the latest census i.e 2011

census while determining number of councilors. In the result,

we do not consider the case of the petitioners is appropriate for

interference with the impugned final notification for formation

4. wp 7897-11 & 10532-11.doc

of the wards in reservation of the seats.

8. Shri. Dani, learned counsel for the petitioners submitted that

sub-section 3 of Section 5 of the B.P.M.C. Act contemplates that

the number of persons in each ward according to the latest

census figures shall approximately be the same. The learned

counsel has submitted that there are some discrepancies in

formation of wards in the census and that the number of

persons is not the same. Shri. Dani, learned counsel, however

fairly accepted that the differences are not greater than 10%

between two wards which is a margin permitted by the Election

Commission in the guidelines dated 16th August 2011 framed

by it.

9. In the circumstances, Rule is discharged.

[ SMT. V.K. TAHILRAMANI, J ] [ S.A. BOBDE, J ]