Abhijit Ganpat Samant And Anr vs State Of Maharashtra And 3 Ors
2022 Latest Caselaw 539 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICTION
                  WRIT PETITION NO.3824 OF 2021
1.   Abhijit Ganpat Samant
     Age: 55, Occupation: Business,
     Having address at: 54 Suhana Housing
     Society, Azad Road, Gundavali Gaothan,
     Lane No.1, Andheri (East),
     Mumbai - 400 069.
2.   Rajeshree Shirwadkar
     Age: 43, Occupation: Business,
     Having address at C/503,
     Brahmasiddhi CHS,
     Appasaheb Marthe Marg,
     Prabhadevi, Mumbai.                        ....Petitioners
           VERSUS
1.   State of Maharashtra,
     Through the Principal Secretary,
     Law and Judiciary Department,
     Mantralaya, Mumbai,
     Maharashtra - 400 032.
2.   Maharashtra State Election Commission,
     Through its State Election Commissioner,
     Having office at First Floor,
     New Administrative Building,
     Mumbai, Maharashtra - 400 032.
3.   Election Commission of India,
     Through its Chief Election Commissioner,
     Having office at Nirvachan Sadan,
     Ashok Road, New Delhi - 110 001.

4.   Municipal Corporation of Greater Mumbai,
     Through the Municipal Commissioner,
     MCGM, Having office at 5,
     Mahapalika Marg, Dhobi Talao,
     Chhatrapati Shivaji Terminus Area,
     Fort, Mumbai, Maharashtra - 400 001.       ....Respondents

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                                   ...
Dr. Veerendra Tulzapurkar, Senior Advocate a/w Mr. Nikhil Sakhardande,
Senior Advocate a/w Mr. Pralhad Paranjape & Ms. Druti Datar for the
Petitioners.
Mr. Ashutosh A. Kumbhakoni, Advocate General a/w Mr. Akshay Shinde, 'B'
Panel Counsel and Mr. Abhay Patki, Additional GP for for Respondent No.1-
State.
Mr. Sachindra B. Shetye for Respondent No.2-State Election Commission.
Mr. Pradeep Rajagopal a/w Ms. Drishti Shah for Respondent No.3-ECI.
Mr. A.Y. Sakhare, Senior Advocate a/w Ms. Oorja Dhond i/b Mr. S.K.
Sonawane for Respondent No.4-MCGM.
                                   ...

                                 CORAM : A.A. SAYED &
                                         ABHAY AHUJA, JJ.

DATE : 17 JANUARY 2022.

(THROUGH VIDEO CONFERENCING)

JUDGMENT: (per A.A. SAYED, J.)

1 The Petitioners, who are Councillors of Mumbai Municipal

Corporation, have questioned the Constitutional validity of the Ordinance

No.XIII of 2021 dated 30 November 2021. By the impugned Ordinance,

section 5(1)(a) of the Mumbai Municipal Corporation Act, 1888, is amended

by increasing the number of directly elected Municipal Councillors from 227

to 236.

2 Section 5 of the Mumbai Municipal Corporation Act, 1988, provides

for the composition of the Mumbai Municipal Corporation (hereinafter

referred to as 'the Corporation'). Section 5(1)(a) reads thus:

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"(1) The Corporation shall consist of, -

(a) two hundred and twenty seven Councillors directly elected at Ward elections;"

3 Census is taken every ten years under the Census Act, 1948 and Census Rules, 1990. The case of the Petitioners is as under:

(i) In the 1991 Census of India, the population of Brihan Mumbai

(hereinafter referred to as "Mumbai") was recorded as 98,09,936. The

number of directly elected Councillors (hereinafter referred to as

'Councillors') in the Corporation was 221.

(ii) In the next Census i.e. 2001 Census, the population of Mumbai was

recorded as 1,19,78,450. Due to the increase in population, the number of

Councillors was increased from 221 to 227 (by Ordinance dated 7

September 2001).

(iii) In February 2002, elections were held to the Corporation with 227

Wards.

(iv) In the next Census i.e. 2011 Census, the population of Mumbai was

recorded as 1,24,42,373.

(v) It is pointed out on behalf of the Petitioners that on 5 November 2011,

a Notification was issued by the State Election Commissioner in exercise of

powers under section 5A, 18A and 19 of the Mumbai Municipal Corporation

Act for fixing the number and the extent of the Wards into which the

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Municipal area of the Corporation was to be divided and specifying the

Wards reserved for Scheduled Castes, Scheduled Tribes, Women and

Backward Class of citizens. This exercise was carried out for the elections

which were to be held in the year 2012 with 227 Wards.

(vi) On 16 February 2012, elections were held to the Corporation with

227 Wards.

(vii) Thereafter, on 25 November 2016, a Notification under sections 5A,

18A and 19 of the Mumbai Municipal Corporation Act was issued by the

State Election Commissioner, to carry out similar exercise for the elections

which were to be held in the year 2017 with 227 Wards.

(viii) On 21 February 2017, elections were held to the Corporation with

227 Wards.

(ix) The next Census was due in the year 2021. Though the Census work

had begun, on account of the Covid-19 pandemic, the work of 2021 Census

was directed to be postponed until further orders, by a Notification dated 25

March 2020 issued by the Census Commissioner of India.

The main contention of the Petitioners is that without waiting for the 2021

Census, the impugned Ordinance was promulgated on 30 November 2021

without any recent empirical data in relation to population, reservation, sex

and changes in the boundaries of Wards, and the figures of 2011 Census,

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which was a decade old, could not have been the basis for amending

section 5(1)(a) of the Mumbai Municipal Corporation Act.

4 We have heard learned Senior Counsel for the Petitioners, learned

Advocate General for the Respondent No.1-State, learned Senior Counsel

for the Respondent No.4-Municipal Corporation of Greater Mumbai and

learned Counsel for the Respondent no.2-Maharashtra State Election

Commission.

5 Learned Senior Counsel for the Petitioners submitted that the

impugned Ordinance is in violation of Article 14 of the Constitution and the

challenge is based on two grounds: (i) Manifest arbitrariness, and (ii)

Irrationality.

(i) Manifest arbitrariness -

Learned Senior Counsel for the Petitioners submitted that until the 2021

Census is carried out, the power under section 5(1)(a) of the Mumbai

Municipal Corporation Act, 1888 is not available and cannot be exercised to

increase the number of Councillors from 227 to 236. He has invited our

attention to sections 5A, 18A and 19(1)(a) of the Mumbai Municipal

Corporation Act, 1888. Section 5A provides for reservation of seats in the

Corporation for persons belonging to Scheduled Castes, Scheduled Tribes,

Women and Backward Class of citizens. Under section 18A, the State

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Election Commission is empowered to prepare the electoral rolls and to

conduct elections to the Corporation. Under section 19(1)(a), the State

Election Commission is authorized to divide the area of Mumbai into Wards

and specify the boundaries thereof, so 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. Section 19(1)

(a) also stipulates that one Councillor shall be elected from each Ward. It is

contended by learned Senior Counsel for the Petitioners that there being no

Census after the year 2011, the latest Census figures are not available and

there was no warrant to increase the number of Wards from 227 to 236 by

the impugned Ordinance amending section 5(1)(a). It is submitted that the

power to carry out fixation of the boundaries has already been exercised by

virtue of the Notification dated 25 November 2016 issued by the State

Election Commission for the elections of the year 2017 on the basis of the

data of 2011 Census, fixing the reservations for Scheduled Castes,

Scheduled Tribes, Women and the Backward Class of citizens. It is

contended that the power to alter the boundaries has been exhausted and

the change in population from 2001 to 2011 was taken note of and already

acted upon in the elections of the year 2017 and if the said power has to be

exercised again, it can be done only on the basis of the latest Census which

was to be taken in the year 2021 and which now stands postponed. It is

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submitted that the impugned Ordinance is manifestly arbitrary and violative

of Article 14 of the Constitution as the impugned Ordinance is promulgated

without there being any contemporaneous empirical data in relation to

Scheduled Castes, Scheduled Tribes, Women and Backward Class of

citizens, which is sine qua non for increasing the number of Councillors.

(ii) Irrationality:

It is pointed out by learned Senior Counsel for the Petitioners that when

there was an increase in the population of Mumbai from 1991 to 2001 by

22.1%, the number of Councillors was increased by 6 (i.e. 221 to 227),

whereas, when the increase in the population from 2001 to 2011 is only

3.87%, the number of Councillors has been increased by 9 (i.e. from 227 to

236). It is submitted that the increase in the number of Councillors by the

impugned Ordinance is therefore irrational and in violation of Article 14 of

the Constitution.

6 Learned Senior Counsel for the Petitioners has placed reliance on the

judgment of the Supreme Court in Shayara Bano vs. UOI, (2017) 9 SCC 1.

He has also placed reliance on Orders of the Supreme Court viz.- (i) Order

dated 6 December 2021 in SLP (C) No.19756 of 2021; (ii) Order dated 15

December 2021 in SLP (C) No. 19756 of 2021 [and connected Writ

Petition (Civil) No.841 of 2021], and (iii) Order dated 9 September 2020

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in SLP (C ) No.15737 of 2019 (Dr. Jaishri Laxmanrao Patil vs. The Chief

Minister & Anr.).

7 The Petition is vehemently opposed on behalf of the Respondents.

Learned Advocate General has placed reliance on the judgment of the

Supreme Court in T. Venkata Reddy and others vs. State of Andhra

Pradesh, (1985) 3 SCC 198. Learned Senior Counsel for the Corporation

has placed reliance on the judgments of the Supreme Court in

Gurudevdatta VKSSS Maryadit & Ors. vs. State of Maharashtra & Ors.

(2001) 4 SCC 534 and State of Bihar & Ors. vs. Bihar Distillery Ltd. &

Ors., (1997) 2 SCC 453.

8 We have considered the contentions raised by the learned Counsel.

9 In T. Venkata Reddy & Ors. vs. State of Andhra Pradesh (supra)

the Constitution Bench of the Supreme Court, while endorsing the view of

the Constitution Bench judgment of the Supreme Court in R.K. Garg vs.

Union of India, (1985) 1 SCC 523, which in turn had approved another

Constitution Bench judgment of the Supreme Court in A.K. Roy v. Union of

lndia, (1982) 1 SCC 271, held that an Ordinance is a 'law' and has the

same force and effect as an Act of Parliament or an Act of the State

Legislature. The Supreme Court further held that while the Courts can

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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 motives 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. It was further held that 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.

10 It is thus well settled that an Ordinance enjoys the same protection as

a legislation and the same tests would apply in a challenge to the validity of

an Ordinance as that of a legislation. It is equally well settled that there is a

presumption of constitutionality of a legislation, which presumption shall

also apply in the case of an Ordinance.

11 In Shayara Bano vs. Union of India (supra), relied upon by the

learned Senior Counsel for the Petitioners, the Constitution Bench of the

Supreme Court while referring to another Constitution Bench Judgment of

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this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of

India, (1985) 1 SCC 641, held that the test of manifest arbitrariness would

apply to invalidate legislation under Article 14. The Supreme Court held -

"Manifest arbitrariness, therefore, must be something done by the

legislature capriciously, irrationally and/or without adequate determining

principle. Also, when something is done which is excessive and

disproportionate, such legislation would be manifestly arbitrary. We are,

therefore, of the view that arbitrariness in the sense of manifest

arbitrariness as pointed out by us above would apply to negate legislation

as well under Article 14."

12 The term of the Corporation is to expire on 8 March 2022. On 3

November 2021, the Municipal Commissioner addressed a letter to the

Principal Secretary, Urban Development Department, State of Maharashtra,

placing on record the relevant facts and recommending that the existing

number of 227 election Wards be increased proportionately to the

population of Mumbai. Accordingly, after receipt of the said letter a proposal

was put forth by the Urban Development Department before the Cabinet.

13 On 10 November 2021, a Cabinet decision was taken to increase the

number of Municipal Councillors in the Corporation from 227 to 236 based

on the increase in population of Mumbai in the 2011 Census. On 30

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November 2021, the impugned Ordinance was promulgated increasing the

number of Councillors of the Corporation from 227 to 236 by amending

section 5(1)(a) of the Mumbai Municipal Corporation Act, 1888. The

impugned Ordinance reads thus:

"URBAN DEVELOPMENT DEPARTMENT Mantralaya, Madam Cama Marg, Hutatma Rajguru Chowk, Mumbai 400 032, dated the 30th November 2021.

MAHARASHTRA ORDINANCE No. XIII OF 2021.

AN ORDINANCE further to amend the Mumbai Municipal Corporation Act. WHEREAS both Houses of the State Legislature are not in session;

AND WHEREAS the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action further to amend the Mumbai Municipal Corporation Act, for the purpose hereinafter appearing;

NOW, THEREFORE, in exercise of the powers conferred by clause (1) of article 213 of the Constitution of India, the Governor of Maharashtra is hereby pleased to promulgate the following Ordinance, namely:--

1. (1) This Ordinance may be called the Mumbai Municipal Corporation (Second Amendment) Ordinance, 2021.

(2) It shall come into force at once.

2. In section 5 of the Mumbai Municipal Corporation Act, in sub-section (1), in clause (a), for the words "two hundred and twenty- seven" the words "two hundred and thirty-six" shall be substituted."

14 Reference is required to be made to the Statement of the impugned

Ordinance. The said Statement reads as follows:

"STATEMENT Section 5 of the Mumbai Municipal Corporation Act (III of 1888) provides the number of Councillors directly elected at ward elections in Municipal Corporation of Brihan Mumbai. The existing number of directly elected Councillors are based upon the population figures of

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2001. After the Census of 2011, the number of directly elected Councillors are not changed.

2. As per the population data of 2011 Census in the decade of 2001 to 2011, there is growth of 3.87 per cent. in the population in the limits of the Municipal Corporation of Brihan Mumbai. Considering this growth in urban population and the growing speed of urbanization, to ensure that the increased population to be proportionately represented in the Corporation, it is considered expedient to enhance the number of directly elected Councillors in the Municipal Corporation of Brihan Mumbai. It is, therefore, proposed to amend section 5 of the Mumbai Municipal Corporation Act, suitably.

3. As both Houses of the State Legislature are not in session and the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action further to amend the Mumbai Municipal Corporation Act, for the purpose aforesaid, this Ordinance is promulgated.

sd/-

Mumbai, BHAGAT SINGH KOSHYARI, Dated the 27th November 2021. Governor of Maharashtra."

By order and in the name of the Governor of Maharashtra, sd/-

MAHESH PATHAK, Principal Secretary to Government."

(emphasis supplied)

15 From the aforesaid Statement, it is evident that after the 2011 Census

the number of Councillors has not changed. This is an admitted position. It

is required to be noted that based on the provisional Census figures of the

2001 Census (see Statement of the Ordinance dated 7 September 2001 at

page 58 of the Petition), the number of Councillors was increased from 221

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to 227 by Ordinance dated 7 September 2001. Thus, after the 2011

Census, which shows an increase of 3.87 percent in the population of

Mumbai, the number of Councillors remained at 227 and the corresponding

increase in the number of Councillors has not been effectuated. If the 3.87

percent increase is applied to 227 (which is the existing number of

Councillors) it comes to 9 approximately [i.e. (227x3.87) ÷ 100 = 8.78]. If 9

is added to 227, it would be 236. The increase in the number of Councillors

is therefore proportionate to the increase in the population figures of 2011

Census.

16 Merely because in the elections of the Corporation of the year 2017,

the number of Councillors had remained at 227 and was not increased after

the 2011 Census, would not mean that such increase cannot be effected at

a later point of time on the basis of the 2011 Census. The power to amend

section 5(1)(a) for increasing the number of Councillors can be exercised at

any time, whether before or after the elections. This power is independent

and has no nexus with the exercise of powers by the State Election

Commissioner under sections 5A, 18A and 19 of the Mumbai Municipal

Corporation Act (interalia in relation to reservation and delimitation based

on the existing number of Councillors), which is essentially a pre-election

exercise. The only stipulation for the exercise of such power to increase the

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number of Councillors is that such increase can be only on the basis of

increase in the population at the last preceding Census. For amending

section 5(1)(a), there is no warrant to look into the aspects of reservation,

delimitation, etc. Section 5A, which deals with reservation of seats, also

brings this out. Section 5A is prefaced with the words - "Notwithstanding

anything contained in clause (a) of sub-section (1) of section 5 ..." There

is, therefore, no requirement of any empirical data of reservation,

delimitation, etc. to amend section 5(1)(a) of the Mumbai Municipal

Corporation Act to increase the number of Councillors.

17 Part IX-A of the Constitution of India deals with the Municipalities.

Sub-clause (g) of Articles 243-P defines "population" as follows:

"(g) "population" means the population as ascertained at the last preceding census of which the relevant figures have been published."

(emphasis supplied)

18 Section 19(1)(a) of the Mumbai Municipal Corporation Act reads thus:

"19. (1) For the purposes of elections to the Corporation,--

(a) The State Election Commissioner shall, from time to time, by notification in the Official Gazette, divide the area of Brihan Mumbai into wards and specify the boundaries thereof, so 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

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approximately be the same. Each of the wards shall elect only one councillor:

Provided that ... ...

..."

(emphasis supplied)

19 In the present case, the population of Mumbai 'at the last preceding

Census of which relevant figures have been published' (in terms of Article

243-P(g) of the Constitution) or the 'latest Census figures' (in terms of

section 19(1)(a) of the Mumbai Municipal Corporation Act), is the 2011

Census. The 2021 Census stands postponed on account of Covid-19

pandemic. In these circumstances, 2011 Census figures of population of

Mumbai alone can the basis to amend section 5(1)(a) of the Mumbai

Municipal Corporation Act to increase the number of Councillors in the

Corporation. The number of Councillors was accordingly increased by the

impugned Ordinance from 227 to 236 based on the 2011 Census.

20 Reference may be made to similar provisions in the Maharashtra

Municipal Corporation Act, 1949. Section 5(3) of the Maharashtra Municipal

Corporation Act reads thus:

"(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 councillors so that, as

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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 ward shall elect only one Councillor.

Provided that, ... ... ...

Provided further 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 have effect except for the general election held next after the date thereof and for subsequent elections.

Provided also ... ... ...

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 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.

..."

(emphasis supplied)

21 The State Election Commission is vested with the powers of

superintendence, direction and control of the preparation of electoral rolls

for, and to the conduct of the Corporation election under Article 243-ZA of

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the Constitution read with section 18-A of the Mumbai Municipal

Corporation Act. The exercise carried out by the State Election

Commissioner under section 5A, 18A and 19 after issuing Notification is an

exercise which is required to be carried out prior to every election

regardless of the number of Wards having remained the same or having

increased. Such exercise is carried out also to comply with the

Constitutional mandate of rotation of reserved seats allotted to different

Wards in the Corporation under Article 243-T of the Constitution read with

section 5A(6) of the Municipal Corporation Act. The reliance on behalf of the

Petitioner on the Notification dated 25 November 2016 of the State Election

Commission to contend that in the elections of 2017, the exercise of change

of boundaries of Wards was carried out after taking note of the change in

population from 2001 to 2011 and therefore there could not have been any

increase in the number of Councillors unless the 2021 Census is

conducted, is fallacious. The power exercised by the State Election

Commissioner under sections 5A, 18A and 19 is, as discussed above,

distinct from the power exercised to amend section 5(1)(a) of the Mumbai

Municipal Corporation Act to increase the number of Councillors.

22 The contention on behalf of the Petitioners that there was no

empirical data to increase the number of Councillors for amending section

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5(1)(a) of the Maharashtra Municipal Corporation Act is ill-conceived, as

there was no requirement of such empirical data. Equally, as discussed

above, we do not find any substance in the contention on behalf of the

Petitioners that the 2011 Census could not have been the basis to increase

the number of Councillors. In the circumstances, we do not see any

arbitrariness, much less manifest arbitrariness, in the impugned Ordinance

which increases the number of Councillors from 227 to 236 based on the

population figures of 2011 Census. 'Manifest' arbitrariness, as a matter of

fact, has not even been pleaded in the Petition.

23 The next contention of learned Senior Counsel for the Petitioners is

that the impugned Ordinance is irrational and therefore in violation of Article

14 of the Constitution. As stated earlier, in Shayara Bano vs. UOI (supra)

the Constitution Bench of the Supreme Court has held that manifest

arbitrariness, must be something done by the legislature capriciously,

irrationally and/or without adequate determining principle. In our view,

therefore, irrationality would also broadly fall within the umbrella of manifest

arbitrariness. It is submitted that when there was an increase in the

population of Mumbai from 1991 to 2001 by 22.1%, the number of

Councillors has been increased by 6 ( i.e. from 221 to 227), however, when

the increase in the population from 2001 to 2011 is only 3.87%, the number

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of Councillors has been increased by 9 (i.e. from 227 to 236). It is

contended that the increase is therefore, irrational. This contention need not

detain us as we find that there is no such pleading in the Writ Petition. Even

otherwise, the subject matter of the present Writ Petition is the Ordinance

dated 30 November 2021. We have already explained with calculations in

paragraph 15 above, how the increase in 9 Councillors is proportionate to

the increase in population from the year 2001 to 2011 on the basis of the

2011 Census figures. On what basis the number of Councillors was

increased earlier, is hardly relevant for the purpose of deciding the validity

of the impugned Ordinance dated 30 November 2021.

24 We have perused the orders dated 6 December 2021 and 15

December 2021 of the Supreme Court in SLP (C) No.19756 of 2021 [ and

connected Writ Petition (C) No.481 of 2021] relied upon by learned Senior

Counsel for the Petitioners. The Supreme Court in the said case has

interalia dealt with the issue of 27% reservation for Other Backward Class

of citizens (OBCs) in the State of Maharashtra. Following the decision of

the Constitution Bench judgment in K. Krishna Murthy (Dr.) & Ors. Vs.

Union of India and Anr. (2010) 7 SCC 202 and 3-Judge Bench decision in

Vikas Kisanrao Gawali v/s. State of Maharashtra, 2021 (6) SCC 73, the

Supreme Court, in the said orders, has referred to the triple test to be

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fulfilled before provisioning the reservation for OBCs - one of the tests being

setting up a dedicated Commission and contemporaneous empirical data to

ascertain the proportion of reservation. The Supreme Court found that

there was no contemporaneous empirical data to ascertain the extent of

reservation provided by the State Government for OBCs. The Supreme

Court, therefore, stayed the elections of all local bodies in the State of

Maharashtra to the extent of OBCs. Learned Counsel for the Maharashtra

State Election Commission candidly stated that in view of the

aforementioned orders of the Supreme Court, the forthcoming elections of

the Corporation would be conducted without providing for any reservation

for OBCs. In the present case, we have held that there was no requirement

for any empirical data to amend section 5(1)(a) of the Mumbai Municipal

Corporation Act to increase the number of Councillors. The reliance,

therefore, on behalf of the Petitioners on the said orders dated 6 December

2021 and 15 December 2021 is wholly misplaced.

25 In Dr. Jaishri Laxmanrao Patil vs. The Chief Minister & Anr.

(supra), relied upon by learned Senior Counsel for the Petitioners, the

Supreme Court, while passing an interim order opined that there is no

absolute rule that interim orders cannot be passed when an enactment is

ex-facie unconstitutional and referred the issue of reservation of Maratha

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community to a larger Bench. Inasmuch as we are deciding the Petition

finally, the said order has no application in the present case.

26 In the result, the challenge to the Constitutional validity of the

Ordinance dated 30 November 2021, fails. The Petition is accordingly

dismissed with no order as to costs.

             (ABHAY AHUJA, J.)                          (A.A. SAYED, J.)




             Digitally signed
             by SUDARSHAN
SUDARSHAN    RAJALINGAM
RAJALINGAM   KATKAM
KATKAM       Date: 2022.01.19
             19:55:52 +0530