Kapoorchand Durgaprasad Gupta vs The Municipal Corporation Of
2011 Latest Caselaw 141 Bom

    ssp                                     1                                WP 1577 of 2011


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                      ORDINARY ORIGINAL CIVIL JURISDICTION
                         WRIT PETITION NO.1577 OF 2011




                                                         
    Kapoorchand Durgaprasad Gupta,
    age 45 years, of Mumbai, Indian
    Inhabitant, residing at 26, Natwarlal
    Ganatra Chawl, Sai Nagar Compound, 




                                                        
    M.G.Road, Kandivali (W), 
    Mumbai - 400 067                                             .....Petitioner

             versus




                                            
    1.       The Municipal Corporation of
                             
             Brihan Mumbai
             a Body Corporate, constituted under
             the provisions of Bombay Municipal
                            
             Corporation Act, 1888, having their
             Office at Mahapalika Marg, 
             Bombay - 400 001. 

    2.       The State of Maharashtra
        


             through the Secretary, Urban
             Development Department, 
     



             Manatralaya, Mumbai - 400 032.                      ..... Respondents

    Mr.N.H.Seervai, Senior Advocate i/by Sunil and Co., for the petitioner. 
    Ms.P.A.Purandare, for respondent No.1. 





    Ms.Uma Palsule-Desai, AGP, for respondent No.2. 

                                CORAM:  P.B.MAJMUDAR &
                                          MRS.MRIDULA BHATKAR, JJ. 

                                DATE:     30 th
                                                NOVEMBER, 2011
                                                              





    ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) :-

1. By way of this petition, the petitioner has challenged the

amendment made in the Bombay Municipal Corporation Act, 1888, by

amending Section 5A to the Bombay Municipal Corporation Act. By the

ssp 2 WP 1577 of 2011

said amendment in sub-section 2(b), for the words "one-third" which is

provided for the women reservation, it is added as "one-half", meaning

thereby that the reservation provided for the election to the Bombay

Municipal Corporation Act, is increased from "one-third" to one-half" i.e.

50%. The said amendment in the Act, has been challenged by the

petitioner on the ground that providing 50% reservation for the women is

excessive, arbitrary and is against the democratic principles and may affect

the basic structure of the Constitution of India, as everybody has equal

right to take part in the election and by increasing the quota, the person

from general category may not get same equal opportunity of contesting

the election. The provisions is also challenged on the ground that

providing excessive reservation may amount to arbitrary action on the part

of the State Government and therefore, if an action is arbitrary the same is

hit by Article 14 of the Constitution of India and therefore, such

amendment is ultra vires to the Constitution of India and is required to be

struck down by appropriate writ, order or direction under Article 226 of

the Constitution of India, by restoring the earlier provisions by which "one-

third" reservation was kept in the Act.

2. It is the say of the petitioner that in so far as the City of

Mumbai is concerned, it is a cosmopolitan city and therefore, women

residing within the Corporation limit of Mumbai City may not require that

ssp 3 WP 1577 of 2011

much protection by providing additional reservation, as compared to other

rural areas in the State of Maharashtra. On behalf of the petitioner, it is

submitted that the legislation has not applied its mind on the relevant

aspect of the matter while amending the Act and different yardsticks

should have been adopted for different Municipal Corporations like Pune,

Nagpur, Aurangabad, as compared to Mumbai.

3. The learned counsel for the petitioner vehemently

submitted that by the impugned Act, the unequals are treated equally,

which is discriminatory and the State Government has not applied its mind

totally to the women population inhabiting in the limits of the Bombay

Municipal Corporation. It is submitted that there is no reason to increase

the reservation for women from "one-third" to "one-half" and if other

reservations are included, such as SC, ST, OBC, it may travel upto 65%. It

is also submitted that the said enactment is made without proper

application of mind and it is not based on any scientific data regarding the

total population of the women so far as the Mumbai Municipal

Corporation area is concerned. It is submitted that the total percentage of

reservation before the enactment of the Act and till the last election in

2007 stood at approximately 55 percent of the total number of seats or

125 out of 227 seats.

4. The main attack of the petitioner to the provisions of the

ssp 4 WP 1577 of 2011

Act is on the ground of excessive reservation. It is submitted that in so far

as the City of Mumbai is concerned, there was no necessity to increase the

reservation for women and therefore, qua Mumbai and the area of Brihan

Mumbai as covered and governed by the Mumbai Municipal Corporation

Act, 1888, the reservation of seats for more than "one-third" is absolutely

arbitrary as there was no necessity for providing excessive reservation so

far as Mumbai city is concerned. Out of 227 seats, 114 seats are reserved

for women. In any case, the Mumbai Municipal Corporation should not

have equated with other rural areas of the State and on that basis, so far

as the reservation of "one-half" to the Mumbai City is concerned, the same

is required to be struck down as arbitrary, discriminatory and violative of

Article 14 of the Constitution of India. It is submitted that it was not the

intention of the framer of the Constitution that excessive reservation may

be provided in a particular area in the matter of conducting elections of

local bodies and in so far as the women in Mumbai city is concerned, they

cannot be equated with the rest of the part of the State and therefore, the

legislation should have considered this aspect before making applicable

the same to the Corporation area of Mumbai is concerned. It is submitted

that the reservation in question for women is not based on any cogent

material. It is pointed out that the women are not at disadvantage position

ssp 5 WP 1577 of 2011

as compared to men in the matter of contesting elections to the Municipal

Corporations. It is submitted that such a excessive reservation should be

treated as bad, as it may affect the basic structure of the Constitution of

India. It is submitted that in a given case, if the reservation is increased to

some extent, one may not take objection, but in the instant case, after

considering the other reservations, it may go upto 66%, which is

marginally more and it cannot be treated as reasonable and rational. It is

submitted that the reservation is an exception and it is not a rule and even

in Parliament and Assembly, reservation for women is upto 33% and no

amendments have been made in the respective Acts, by increasing the

same upto 50%.

5. The provisions of the said Act is accordingly challenged on

the aforesaid grounds and it is prayed that the amendment made in the

said Act, may be struck down as it is violative of Article 14 of the

Constitution and it is arbitrary and the respondents may be directed that

the election should be held on the basis of non-amended provisions i.e. by

providing "one-third" reservation for women.

6. The petition has been resisted on behalf of the State

Government by filing appropriate affidavit-in-reply. On behalf of the State

government, the petition is opposed on the ground that it is not open to

the Court to strike down any statutory provision on the ground that the

ssp 6 WP 1577 of 2011

amendment has been made without application of mind or that it is

arbitrary. On behalf of the State Government, it is submitted that the

amendment is made in view of the mandate of the Constitution and more

precisely as per the provisions of Article 243T of the Constitution of India.

The learned AGP submitted that the reservation provided for election

cannot be equated with the reservation as in service matter wherein the

provisions of Article 16 of the Constitution of India is applicable. It is

submitted that after considering the scientific data, the State Legislature in

its wisdom thought it fit to increase the reservation from "one-third" to

"one-half" with a view to uplift and encourage the participation of the

women in the local bodies and to compete equally with the men and to

bring the women in the mainstream of the society. It is submitted that the

entry in politics has enhanced the self-esteem, confidence and decision

making ability of the women. The object of the amendment is that the

positive contribution made by the elected women representatives needs to

be sustained by ensuring continued participation of women in the political

process. The learned AGP submits that a need was felt for increasing such

reservation from "one-third" to "one-half" that the said Act is amended. It

is argued by the learned AGP that the reservation for women in the urban

local bodies has ensured that women from all sections including weaker

sections have started participating in the democratic process and the

ssp 7 WP 1577 of 2011

elected women representatives have brought greater focus to the

programmes concerned with women empowerment and have helped in

addressing the issues having special impact on the lives of the women. It

is denied that the situation and need for reservation of seats in Municipal

Corporations throughout the State of Maharashtra is not uniform and the

need for increase in reservation for women in the State belonging to

various Municipalities is unequal and not similarly situated. It is also

denied that the women residing in Mumbai are not in a disadvantageous

position to that of women in small towns. It is denied that by providing

such reservation, any fundamental right is violated and it cannot be said

that the amendment is violative of any Articles of the Constitution. It is

submitted that the State is duty bound to raise the position of women to

that of men and that even as per the mandate of Article 15(3), the State is

duty bound to raise the standard and position of women and children. It

is also submitted that if the State discriminates in favour of women by

providing reservation for them, it does not violate Article 15(1) and the

joint operation of Article 15(1) and Article 15(3) permits the State to

discriminate in favour of women against men but not to discriminate in

favour of men against the women. It is further submitted that looking to

the statistics and population of women in the State of Maharashtra, a need

was felt that the women's representation should be enhanced and to keep

ssp 8 WP 1577 of 2011

parallel with the men, that the aforesaid amendment has been made.

Lastly, it is submitted that the legislation in its wisdom has increased such

reservation and in view of the same, this Court cannot strike down the

aforesaid amendment on the ground that it is violative of Article 14 of the

Constitution of India or that it is arbitrary and unconstitutional in any

manner.

7. We have heard both the sides at great length. The question

which arises for consideration is as to whether the amendment made in

the Act, by which reservation for women has been increased from "one-

third" to "one-half" is unconstitutional or it is violative of Article 14 of the

Constitution of India. During the course of hearing, the learned counsel

for the petitioner specifically submitted that it is not his submission that

the State has no power to provide reservation by enacting the law or that

such reservation is prohibited by any constitutional provision. He

however, submits that his argument is restricted only qua excessive

reservation and arbitrariness, as according to him, such amendment is

arbitrary and violative of Article 14 of the Constitution.

8. In order to appreciate the rival submissions, a reference is

required to be made to Article 15 of the Constitution of India, which reads

as under :

15. Prohibition of discrimination on grounds of religion,

ssp 9 WP 1577 of 2011

race, caste, sex or place of birth : -

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -

(a) access to shops, public restaurants, hotels

and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children

..........

9. By way of Constitution (83rd Amendment Act, 2000), a

special provision has been made in connection with the Municipalities.

Article 243(T) of the Constitution, provides that :

243T. Reservation of Seats - (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every

Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in

the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.

(2) Not less than one-third of the total number of seats

reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filed by direct election in every Municipality shall be reserved for women and such seats may be allotted by

ssp 10 WP 1577 of 2011

rotation to different constituencies in a Municipality.

10. By the said Chapter IXA, which is added in view of Eighty

Third Amendment Act, 2000, the special provision have been made

regarding the Municipalities, which includes : -

(a) 'Committee' means a Committee constituted under article 243S;

(b) 'district' means a district in a State;

(c) 'Metropolitan area' means an area having a population

of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or

other contiguous area, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part;

(d) 'Municipal area' means the territorial area of a Municipality as is notified by the Governor;

(e) 'Municipality' means an institution of self-government constituted under article 243Q;

(f) 'Panchayat' means a Panchayat constituted under

article 243B;

(g) 'population' means to the population as ascertained at

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

It also includes the reservation of seats, composition of wards,

Committees etc. So far as the mandate of Article 243(T) is concerned, it

provides compulsory reservation which should not be less than "one-third"

of the total number of seats reserved for women belonging to the SC and

ST and as per sub-clause (3) not less than "one-third" (including the

number of seats reserved for women belonging to the Scheduled Castes

and the Scheduled Tribes) of the total number of seats to be filled by

ssp 11 WP 1577 of 2011

direction election in every Municipality shall be reserved for women. As

per the Constitutional mandate, in every Municipality, minimum "one-

third" seats are required to be reserved for women as per sub-clause(3) of

Article 243(T). Based on the said aspect, initially in the Act, "one-third"

seats were reserved for women candidates. Now, by the subsequent

amendment, the same has been increased to "one-half".

11. The statement of objects and reasons so as to bring the

amendment in the said Act, which is dated 21st March, 2011, read as

under :

In pursuance of mandate of article 243T of the Constitution of India, the laws relating to the Municipal Corporations and Municipal Councils have been amended by the Maharashtra Municipal Corporations and Municipal

Councils (Amendment) Act, 1994 (Mah.XLI of 1994) Accordingly, at present, one third of the total number of

seats of the Councillors to be filed in by direct election in the Municipal Corporations and Municipal Councils are reserved for women, including the seats reserved for women belonging to Scheduled Castes, Scheduled Tribes

and Backward Class of citizens. Similarly, one third of the offices of Mayor of the Municipal Corporations and President of the Municipal Councils are reserved for women under the rules made under the relevant Municipal laws.

The reservations for women in the urban local bodies

have ensured that women from all sections including from weaker sections have started participating in the democratic process. Further reservations for women as Mayors and Presidents in the urban local bodies have brought them into leadership positions. Such reservations has enhanced the social status of women in the society. At the same time, these women representatives have brought greater focus to the programmes concerned with women empowerment and

ssp 12 WP 1577 of 2011

helped in addressing the issues having special impact on the

lives of the women.

The Government of Maharashtra, has therefore, decided to enhance the reservation for women from the

existing one-third to one-half, by amending the Municipal Corporation and Municipal Council laws.

The Bill seeks to suitably amend the Mumbai Municipal Corporation Act (Bom.III of 1888), the Bombay

Provincial Municipal Corporations Act, 1949 (Bom.LIX of 1949), the City of Nagpur Corporation Act, 1948 (C.P. And Bearer II of 1950) and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965

(Mah.XL of 1965) to achieve the above objectives.

12. Since the Constitution itself provides minimum one-

third seats to be reserved for women, it is rightly argued by the learned

counsel for the petitioner that he is not saying that one-third cannot be

increased as it is only minimum requirement of the Constitution.

However, his argument is in respect of excessive reservation and

arbitrariness on the ground that such reservation has been made without

application of proper mind. In order to substantiate his argument to the

effect that the reservation is arbitrary and excessive, he has relied upon a

decision of the Constitution Bench of the Supreme Court in the case of

K.Krishna Murthy (Dr.) and Ors., V/s. Union of India and Anr.1 In

the above case, the Supreme Court has considered the provisions of

Articles 243(T) and 15(4) and 16(4) of the Constitution in connection

1 (2010) 7 SCC 202

ssp 13 WP 1577 of 2011

with the local self government institutions and bodies. Para No.60 of the

said judgment reads as under :

60. There is no doubt in our minds that excessive and disproportionate reservations provided by the State Legislations can indeed be the subject matter of specific challenges before the Courts. However, the same does not

justify the striking down of Article 243-D(6) and 243-T(6) which are constitutional provisions that enable reservations in favour of backward classes in the first place. As far as the challenge against the various State legislations is

concerned, we were not provided with adequate materials or argumentation that could help us to make a decision

about the same. The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions

need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness.

The Supreme Court has considered the quantum of

reservation in connection with the backward class in local self government

and it has been observed in para 64, as under :

64. In the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in

local self-government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical reservations in favour of Scs/STs/OBCs should not be breached. On the question of

breaching this upper ceiling, the arguments made by the petitioners were a little misconceived since they had accounted for vertical reservations in favour of Scs/STs/OBCs as well as horizontal reservations in favour of women to assert that the 50% ceiling had been breached in some of the States. This was clearly a misunderstanding of the position since the horizontal reservations in favour of women are meant to intersect with the vertical reservations

ssp 14 WP 1577 of 2011

in favour of Scs/STs/OBCs, since one-third of the seats

reserved for the latter categories are to be reserved for women belonging to the same. This means that seats earmarked for women belonging to the general category

are not accounted for if one has to gauge whether the upper ceiling of 50% has been breached.

In para No.66, the Supreme Court has observed that -

66. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation. For instance, the Legislative

Assemblies of the States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservation that are

far in excess of the 50% limit. However, such a position is the outcome of exceptional consideration in relation to these areas. Similarly, vertical reservations in excess of 50%

are permissible in the composition of local self-government institutions located in the Fifth Schedule Areas.

In the concluding paragraph, the Supreme Court observed that -

82. In view of the above, our conclusions are :

(i) The nature and purpose of reservations in the

context of local self-government is considerably different from that of higher education and public employment. In this sense, Article 243D and Article 243T form a distinct and independent constitutional basis for affirmative action and

the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self- government. Even when made, they need not be for a period of corresponding to the period of reservation for the

purposes of Articles 15(4) and 16(4), but can be much shorter.

(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable the State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the

ssp 15 WP 1577 of 2011

State Legislations.

(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is

no contemporaneous empirical date. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the

patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any

aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the

High Court. We are of the view that the identification of "backward classes" under Article 243-D(6) and Article 243- T(6) should be distinct from the identification of SEBCs for

the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4).

(iv) The upper ceiling of 50% vertical reservations in favour of Scs/STs/OBCs should not be breached in the context of local self-government. Exceptions can only be

made in the order to safeguard the interests of the Scheduled Tribes in the matter of their representation in

Panchayats located in the Scheduled Areas.

(v) The reservation of chairperson posts in the manner contemplated by Articles 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be

equated with solitary posts in the context of public employment.

13. Relying on the aforesaid judgment and on the aforesaid

premise, the learned counsel for the petitioner argued that no exceptional

circumstances exist in the instant case and according to him, if the

Legislature had applied its mind properly, it would not have increased the

reservation from "one-third" to "one-half" so far as City of Mumbai is

ssp 16 WP 1577 of 2011

concerned.

14. Considering the aforesaid judgment of the Supreme Court,

it is crystal that the nature and purpose of reservation in connection with

the local self-government is different from higher education and public

employment. In view of the said judgment, Article 243-T form a distinct

and independent constitutional basis and in a given case, such reservation

can be given for a shorter period. The Supreme Court accordingly held the

provisions of Articles 243-D(4) and 243-T(4) as constitutionally valid as it

is in the nature of giving reservations in favour of backward classes.

15. The Supreme Court however, has observed that it will be

open to the petitioners or any aggrieved party to challenge any State

Legislation enacted in pursuance of the said constitutional provisions

before the High Court in case of excessive reservation beyond 50%. The

aforesaid amendment in the Constitution is held to be valid. In our view,

the observations made by the Supreme Court in connection with the

Scs/STs and other reserved category also equally applied so far as

reservation of women is concerned, as amendment in the constitutional

provision is similar in nature.

16. However, the question which is raised before us is that the

reservation in question is excessive in nature and beyond 50%. It is

required to be noted that as per the constitutional amendment, minimum

ssp 17 WP 1577 of 2011

one-third reservation is the mandate of the Constitution in every

Municipalities for women and in a given case, if the legislation in its

wisdom decides to increase such reservation, it is within the powers of the

State Government to increase such a reservation. In our view, the

legislation is empowered to enact the law increasing the minimum

reservation provided in the Constitution upto appropriate percentage and

such reservation can be increased upto 50%. If in a given case, if it is

increased beyond 50%, perhaps one may complain that it is excessive and

arbitrary. We are required to find out whether 50% reservation provided

in any way can be said to be arbitrary, discriminatory and illegal.

17. In this connection, it is required to be appreciated that as

per affidavit-in-reply of the State Government, the one-third reservation

provided in the Constitution has resulted into women taking part more

effectively in the affairs of the Municipal Councils and their contribution as

an elected representatives has been found to be extremely encouraging.

On the basis of the total population, the State Government has ultimately

decided to raise such reservation from one-third to one-half. Such

increase is within the competence of the State Legislation and therefore, it

cannot be said that if any enactment is made in this behalf, increasing the

reservation from one-third to one-half is unconstitutional or the State

Legislation has no power to increase such reservation. In a male

ssp 18 WP 1577 of 2011

dominated society, if the Legislation wisdom has decided to uplift the

position of the women in the society and to put the women equally with

the men, and if the Constitution provides for such upliftment, in our view,

the law enacted by the State Legislation in providing reservation upto one-

half, cannot be struck down by this Court on the ground that it is arbitrary

or violative of Article 14 of the Constitution of India. Though, in a given

case, if reservation is increased more than 50% to larger extent, the Court

may strike down such provisions on the ground of unreasonable and

excessive reservation and it is hit by Article 14 of the Constitution.

18. In so far as the facts and circumstances of the case is

concerned, it is required to be noted that general reservation provided to

women candidates of SCs and STs will merge in the total reservation i.e.

50% provided to women and therefore, it cannot be said that the

reservation is excessive or more than 50%, as today so far as the women

quota is concerned, the reservation is fixed upto 50%, which will take care

of SCs and STs also. It is not the case where over and above 50%

reservation for women, additional reservation is also provided for SCs, STs

and OBCs and infact, that quota is now merged in the total 50%

reservation which is provided for women.

19. In so far as the argument regarding the State Government

has not applied its mind is concerned, we are afraid that the said aspect is

ssp 19 WP 1577 of 2011

not in our domain. In a petition under Article 226 of the Constitution of

India, when an Act enacted by the State legislation is challenged on the

ground that there is no application of mind, the Court cannot strike down

the said enactment on the said ground. The powers of the judicial review

in such cases do not permit us to travel beyond the permissible limit. In

the case of T.Venkata Reddy and Ors. V/s. State of Andhra Pradesh1

wherein it was held that the Ordinance framed by the Andhra Pradesh

Government is not open to challenge on ground of non-application of

mind and mala fides. In para No.14, the Supreme Court observed that

"14. The above view has been approved by another Constitution Bench of this Court in A.K.Roy V/s. Union of India 2. Both these decisions have firmly established that an ordinance is a 'law' and should be approached on that

basis. The language of clause (2) of Article 123 and of clause (2) of Article 213 of the Constitution leaves no room

for doubt. An ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be. When once the above conclusion is reached the

next question which arises for consideration is whether it is permissible to strike down an Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. In other words, the question is whether the validity of an

Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the Legislature, which it is not competent to pass, which is violative of the provisions in

1 (1985) 3 SCC 198 2 (1982) 2 SCR 272

ssp 20 WP 1577 of 2011

Part III of the Constitution or any other constitutional

provision is ineffective. It is a settled rule of constitutional law that the question whether a stature is constitutional or not is always a question of power of the Legislature

concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the Courts can declare a statute unconstitutional when it transgresses constitutional limits,

they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny

of courts. Nor can the courts examine whether the Legislature had applied its mind to the provisions of a

statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the

courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be

clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations

under the Constitution. It cannot be treated as an executive action or an administrative decision.

20. Where in a given case, there is a non-application of mind in

enacting any legislation, is not a matter of judicial review and on that

ground, it cannot be said that such provision is unconstitutional. The

legislation in its wisdom has decided that looking to the need of the

society and with a view to uplift and encourage, they may come forward

and able to take active part in the functioning of local bodies, this Court

cannot strike down the said enactment made on the ground that the

ssp 21 WP 1577 of 2011

legislation has not properly considered the data or basis before enacting

the law. Ultimately on what basis the State legislation has deemed if fit to

amend the law by increasing the reservation, is the subject matter which is

in the domain of legislation and this Court cannot substitute its own views

and strike down the legislation enacted on the ground that in view of the

Court, it should have been 45% or it should have been 40%. In a given

case, if the reservation is so excessive, the Court may interfere and strike

down the said enactment.

20. However, today considering the need for encouraging the

women's participating in the local bodies, if reservation has been extended

upto 50%, in our view, it cannot be said that the reservation is so excessive

that it may result arbitrariness and it may hit Article 14 of the Constitution

of India. It is required to be noted that on behalf of the State

Government, it is argued that there is no separate reservation for SCs/STs

and OBCs women candidates and the 50% reservation provided for

women merges with the increased reservation. But, if there is above 50%

reservation, the Court may come to the conclusion that it is an excessive

reservation. As pointed out earlier, the reservation provided for Scs/STs

and backward classes of women is now not separately considered and it

will form part of the reservation provided for women. Considering the

same, it cannot be said that the amendment in the Act, is required to be

ssp 22 WP 1577 of 2011

struck down on the ground that it is violative of the constitutional

provisions and hit by Article 14 of the Constitution. The State Legislation

is competent to frame such legislation which is in consonance of the

mandate of the Constitution. We failed to understand as to how the

increased reservation will affect the basic structure of the Constitution. If

equal participation of women is permitted which is the need of the day

and which the legislation has considered in its wisdom, the law enacted by

the State Legislature cannot be struck down on the ground that it is

discriminatory and violative of Article 14 of the Constitution. It is not

possible to accept the contention of the learned counsel for the petitioner

that such reservation may be restricted to Municipalities in the rural areas

such as Aurangabad, Nagpur, which are not the cosmopolitan cities and

the women residing in the city of Mumbai do not require any further

protection by way of such reservation. We do not have any data available

with us by which we can come to the conclusion that every women

residing in the Mumbai does not want any such reservation. It may be

true that Mumbai being the cosmopolitan city, the percentage of qualified

and efficient women maybe more as compared to other parts of the State,

but we cannot take judicial notice that all the women residing in the

Mumbai are so well educated and equipped that they do not need any

such additional reservation in the reserved quota in the matter of

ssp 23 WP 1577 of 2011

municipal elections. It cannot be ruled out that even in the Mumbai,

there are people who belongs to weaker section of the society and even

most of the women are residing in slums or even in huts and they may not

be that much equipped as compared to other women. This Court

therefore, cannot take judicial notice that the women residing in Mumbai

City is so refined that they do not need additional reservation i.e. 50%

from one-third which is the minimum requirement of the Constitution. In

any case, when the State legislation in its wisdom has prescribed 50%

reservation, in our view, the enactment in the Act cannot be said to be

arbitrary and discriminatory and that the said enactment is required to be

struck down by this Court by exercising powers under Article 226 of the

Constitution of India.

21. However, before parting with the judgment, we would like

to say that it is for the State Government to periodically consider this issue

of reservation and in future, if it is felt that 50% reservation provided

today is required to be suitably reduced upto the constitutional

requirement and it is for the State to consider this aspect as deemed fit.

This aspect is left to the wisdom of the State legislation. We accordingly

do not find any merits in the petition, as according to us, the amendment

made in the Mumbai Municipal Corporation Act, by raising the reservation

from one-third to one-half, cannot be said to be arbitrary, excessive and

ssp 24 WP 1577 of 2011

discriminatory, which requires to be struck down by this Court in its extra

ordinary jurisdiction under Article 226 of the Constitution of India. The

writ petition is accordingly dismissed with no order as to costs.

( MRS.MRIDULA BHATKAR, J.) ( P.B.MAJMUDAR, J.)