Ambedkarite Party Of India Thr. ... vs State Of Maharashtra Thr. ...
2016 Latest Caselaw 5335 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                           
                              NAGPUR BENCH, NAGPUR




                                      
                       WRIT PETITION NO.3474 OF 2016
                             
                            
      1. Ambedkarite Party of India,
         through its Authorised General
         Secretary Mrs.Vidya Kishor
         Bhimte, having its registered
         Office at Plot No.1672, near
      


         Nav Buddha Vihar, Nara Road,
         Indora (Warphakhad),
   



         Nagpur-440014.                ..........      PETITIONER





              // VERSUS //



      1.State of Maharashtra,





        Through its Principal Secretary,
        Mantralaya, Mumbai-400032.

      2. State of Maharashtra,
         through its Urban Development
         Department, Mantralaya,
         Madam Cama Marg, Hutatma
         Rajguru Chowk, Mumbai-400 032.




    ::: Uploaded on - 22/09/2016            ::: Downloaded on - 23/09/2016 00:10:59 :::
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      3. State Election Commission of




                                                                       
         Maharashtra through its
         Election Commissioner,




                                               
         1st Floor, New Administrative
         Building, Hutatma Rajguru
         Chowk, Madam Cama Road,
         Mumbai 400 032.




                                              
      4. Election Commission of India,
         Nirvachan Sadan, Ashoka Road,
         New Delhi - 110001.




                                      
      5. Union of India,
         through its Cabinet Secretary,
                             
         Cabinet Secretariat, Government
         of India, Rashtrapati Bhavan,
         New Delhi - 110004.           ..........          RESPONDENTS
                            
      ____________________________________________________________
                Mr.N.D.Sonare, Adv. for the Petitioner.
        Mr.Rohit Deo, Acting Advocate General with Mrs.Bharti
      


                Dangre, G.P. for Respondent nos. 1 to 3.
              Ms N.G.Choubey, Adv. for Respondent No.4.
   



      ____________________________________________________________





                                   CORAM   : B.R. GAVAI
                                             AND
                                             V. M. DESHPANDE, JJ.

DATED : 16th September, 2016.

ORAL JUDGMENT (Per B.R. GAVAI, J) :

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1. Petitioner has approached this Court being

aggrieved by the Ordinance promulgated by the Hon'ble

Governor of Maharashtra called as "the Maharashtra

Municipal Corporations and the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Township

(Amendment) Ordinance, 2016 hereinafter referred to "the

amended Ordinance". By virtue of the said Ordinance,

amendments have been effected to the Maharashtra

Municipal Corporations Act (hereinafter referred to as

"the Corporations Act" and the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships Act,

1965 (hereinafter referred to as "the Act of 1965"). The

amendments provide that, insofar as the Municipal

Corporation is concerned, each of the wards shall elect as

far as possible four Councillors but not less than three and

not more than five Councillors. It further provide that each

voter would be entitled to cast the same number of votes,

as number of Councillors to be elected in his ward.

2. Insofar as the general elections to the Municipal

Council are concerned, it has been provided that each of

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the wards shall elect as far as possible two Councillors but

not more than three Councillors. It has been further

provided that each voter shall, not withstanding anything

contained in sub-section (2) of Section 14, be entitled to

cast the same number of votes, as the number of

Councillors to be elected in his ward.

3. Another ground of challenge is with regard to

election of Chairpersons of Municipal Councils directly.

According to the learned Counsel, there is no provision in

the Constitution which permits election to the post of

President of Municipal Council to be done directly and as

such, the amendment violates the Constitution of India.

4. Mr.N.D.Sonare, learned Counsel appearing on

behalf of the petitioner, which is a registered political

party, submits that the Constitution Bench of Hon'ble

Supreme Court has held that Secularism is one of the basic

feature of the Constitution of India. Learned Counsel

submits that, by providing for multi Member Ward System,

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the very concept of Secularism is under attack inasmuch as

the community having majority of votes in a particular

ward would be dominating the elections in that ward.

Learned Counsel submits that such a System is prejudicial

to small political party like the petitioner.

5. Learned Counsel further submits that 'One Man

One Vote and One Value' is the basic concept recognized

in the Constitution of India and by the impugned

Ordinance, the said principle is sought to be given a total

go-bye.

6. The learned Counsel has taken us through the

speeches given by Dr.B.R.Ambedkar as well as other

members in the Constituent Assembly debates.

7. Mr. Rohit Deo, learned Acting Advocate General,

on the contrary, submits that the issue is no more res

integra. He submits that the issue is put to rest by two

Division Bench Judgments; one in Writ Petition No.4855 of

2011 delivered by the Division Bench at Aurangabad on

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23.8.2011 and the other one in Writ Petition No.10354 of

2011 delivered by the Division Bench at the Principal Seat

in Mumbai on 23.12.2011.

8. Nodoubt that the arguments advanced by the

learned Counsel for the petitioner appears to be attractive

at the first blush. Nobody would deny that the Indian

Constitution recognizes Secularism to be one of the basic

concepts of it. With the development of law by Their

Lordships of Hon'ble Supreme Court and various High

Court, it cannot be denied that Secularism will have to be

construed to be a basic structure of the Constitution of

India. However, the question that would be required to be

considered is as to whether the impugned Ordinance

attacks the concept of Secularism or not.

9. Another argument of the learned Counsel

regarding the concept of 'One Man One Vote and One

Value' also finds place in the Indian Constitution. Learned

Counsel is right in relying upon various speeches of

Dr.B.R.Ambedkar as well as other eminent members of the

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Constituent Assembly wherein they have stated that the

Indian Constitution promises political democracies by

adopting principle of 'One Man One Vote and One Value' .

However, again question would be as to whether the Multi

Member Ward System attacks the said principle or not.

10. Insofar as the first submission is concerned, we

are unable to understand as to how the Multi Member

Ward System would attack the concept of Secularism. The

concept of Secularism could be said to have been attacked,

if there was any communal reservation provided in the

Constituencies. What would not be permissible by the

concept of Secularism is reservation for a particular

community professing a particular religion. Same would

not be at all permissible under our Constitutional Scheme.

However, none of the provisions of the impugned

Ordinance would show that any attempt is made in that

regard. Needless to state that all the eligible candidates

professing any religion would be entitled to contest

elections provided that they are otherwise eligible for

contesting elections and insofar as the Constituencies

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which are reserved for various categories are concerned,

they belong to that category. Equally the person belonging

to any religion would be entitled to cast vote for any

candidate though he may be belonging to different religion

or community.

11. As a matter of fact, the Constitution Bench of

Apex Court in the case of R.C.Poudyal .vs. Union of

India and Others reported in AIR 1993 SC 1804 has

clearly held that no reservations could be provided in the

electorates on the basis of any religion. In the said

Judgment, Their Lordships have elaborately considered the

debates in the Constituent Assembly wherein there was

almost unanimity amongst the Hon'ble Members of the

Constituent Assembly, that the greatest evil in this Country

in the past was of communal electorate. It could be seen

that, in one of the debates, the legendary Sardar Patel has

observed that introduction of the system of communal

electorates is poison which has entered into the body of

politics of our Country. Apart from that, it could be seen

that, the Sub-Committee of the Constituent Assembly, on

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the question, as to whether separate electorates for

particular communities could be permitted under the

Constitution, had firmly opined against separate

electorates and had recommended all the elections to the

Central Province Legislature on the basis of joint

electorate. It can thus be seen that the concept of joint

electorates is not introduced by the impugned Ordinance

for the first time but it finds its origin in the report of the

Sub-Committee of the Constituent Assembly. In that view

of the matter, we find that merely because the impugned

ordinance is capable of causing some prejudice to the

petitioner party, cannot be a ground to hold the same to be

unconstitutional.

12. Insofar as the second argument regarding the

impugned Ordinance violating the principle of 'One Man

One Vote and One Value' is concerned, in our considered

view, the same is also without substance. If a particular

ward is to elect five Councillors, then a person from the

said ward will have to vote for different five persons

contesting from the said ward. It is not as if, that the voter

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would be entitled to cast all his five votes in favour of one

particular candidate. Had this been the position, then

certainly the petitioner would have been justified in saying

that the principle of 'One Man One Vote and One Value' is

adversely affected. However, the learned Counsel fairly

concedes that, that is not the position.

13. Insofar as the principle of 'One Man One Vote

and One Value' is concerned, it would further be relevant

to refer to the following observations of Their Lordships of

the Apex Court in the case of R.C.Poudyal (supra) :

" The principle of one man, one vote envisages

that there should be parity in the value of votes of electors. "

14. Now the only question that requires to be

considered is regarding prejudice caused to the small

political parties like the petitioner. By now it is a settled

principle of law that the Courts are not required to

consider the matter from a political angle. The political

considerations would not weigh with the Court. While

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considering the challenge to statutory enactments or

ordinance, only two grounds that will be available for

scrutiny would be : (1) whether the Legislature has

competence to enact the said enactment and

correspondingly as to whether the Hon'ble President or the

Hon'ble Governor would have competence to issue an

Ordinance in respect thereof (2) As to whether the

enactment or Ordinance is in conflict with any of the

provisions of the Constitution.

15. It is not the case of the petitioner that the

Ordinance which is issued is beyond legislative

competence of State Legislature. In that view of the

matter, it will be in the competence of Hon'ble Governor to

issue Ordinance till such time it is placed before the

Houses of the Legislature.

16. Insofar as the second ground is concerned, no

provision of the Constitution has been pointed out which

can be said to be in conflict with the said Ordinance.

Hence, the challenge on that ground would also fail.

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17. In any case, the question regarding Multi

Member Ward System has fallen for consideration before

the two Division Benches of this Court, one at Aurangabad

Bench and one at Principal Seat at Mumbai in the above

referred cases. The said challenge was rejected by this

Court.

18.

As has already been discussed hereinabove, the

impugned Ordinance does not provide for any disparity of

value of votes amongst one section of people as against

another section of people. The value of votes in a particular

ward of all the voters belonging to any religion,

community, caste or creed would be the same.

19. Insofar as the third challenge regarding direct

election of the Chairperson of a Municipality, it will be

relevant to note that under Article 243 R Clause 2(b) of the

Constitution of India, it is for the Legislature of a State to

enact law providing for the manner of the election of the

Chairperson of the Municipality. It can thus be seen that

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the Constitution of India has itself left it to the wisdom of

Legislature to provide for the manner of election of

Chairperson of the Municipality. Unless there is any

provision under the Constitution which prohibits election

of the President of Municipal Council by direct electorate,

the statutory provision cannot be held to be

unconstitutional. Learned Counsel has not been in a

position to point out to us any provision in the Constitution

which prohibits direct election of the President of

Municipal Council.

20. In view of the above, since the present Writ

Petition is devoid of merits, the same is dismissed. No

order as to costs.

                       JUDGE                                          JUDGE





      [jaiswal]





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I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.

Uploaded by : Jaiswal, P.S. Uploaded on : 22.9.2016.