Delhi High Court
We The Citizens Through Its ... vs Union Of India & Ors. on 23 March, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 1291/2017
Reserved on : 17th March, 2017
Date of decision: 23rd March, 2017
WE THE CITIZENS THROUGH ITS SECRETARY..... Petitioner
Through: Mr. Barun Kumar Sinha, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Rishabh Sahu & Mr. Sameer
Sharma, Advocates for respondent No.1
Mr. Sanjoy Ghose, ASC with Mr. Rishabh Jaitley,
Advocate for respondent No.2
Mr. Sumeet Pushkarna, Standing Counsel with
Mr. Siddhartha Nagpal, Advocates for State
Election Commission with Mr. Girish Pandey,
Deputy Secretary.
Mr. Rakesh Mittal, Advocate for SDMC
Mr. G.D. Mishra, Advocate for EDMC
W.P.(C) 1632/2017
SOMA RANI ..... Petitioner
Through: Mr. Rakesh Khanna, Senior Advocate
with Mr. Sunil Nagar, Mr. Vijay Kasana & Ms. S.
Bushra Kazim, Advocates
versus
STATE ELECTION COMMISSION AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary.
Mr. Sanjoy Ghose, ASC with Mr. Rishabh Jaitley,
Advocate for GNCTD.
Mr. Kavindra Gill, Advocate for respondent No.3
W.P.(C) 1710/2017
SUBHASH SONI ..... Petitioner
Through: Mr. Puneet Singh Bindra, Mr.Aslam
Ahmed & Mr. Sumanta Kumar, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary
Mr. S.K. Sethi & Ms. Dolly, Advocates for
respondent No.2
Mr. G.D. Mishra, Advocate for EDMC
W.P.(C) 1670/2017
M. NAGARAJAN ..... Petitioner
Through: Mr. A. Maitri & Ms. Radhika
Chandrashekhar, Advocates
versus
STATE ELECTION COMMISSION & ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary.
Mr. Sanjoy Ghose, ASC with Mr. Rishabh Jaitley,
Advocate for GNCTD
W.P.(C) 1906/2017
RANVIR VATS ..... Petitioner
Through: Mr. Sanjeev Kumar, Advocate
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Arun Kumar, Advocate for
respondent No.1
Mr. G.D. Mishra, Advocate for EDMC
Mr. Rakesh Mittal, Advocate for SDMC
Mr. Sanjoy Ghose, ASC with Mr. Rishabh Jaitley,
Advocate for GNCTD
W.P.(C) 1978/2017
HINDU-MUSLIM JAN KALYAN SAMITI (REGD)..... Petitioner
Through: Mr. Alok Shukla, Advocate
versus
THE COMMISSIONER STATE ELECTION COMMISSION NCT
OF DELHI AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary.
Mr. Uttam Dutt & Mr. Tarun Sharma, Advocates
for respondent Nos.2 & 3.
Ms. Namisha Gupta, Advocate for respondent
No.4.
Mr. Sanjoy Ghose, ASC with Mr. Rishabh Jaitley,
Advocate for GNCTD
W.P.(C) 2017/2017
SANJEET SINGH DABAS ..... Petitioner
Through: Mr. Yudhvir Singh Chauhan,
Advocate
versus
STATE ELECTION COMMISSION AND ANR ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary
Mr. Sumit K. Batra & Mr. Kapil Choudhary,
Advocates for respondent No.2
W.P.(C) 2106/2017
HARISH CHANDRA DHUPAR ..... Petitioner
Through: Mr. G.D. Parashar & Ms. Parul
Singh, Advocates
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Nirvikar Verma, Advocate for
respondent No.1.
Mr. N.S. Arora, Advocate for respondent No.2
Mr. G.D. Mishra, Advocate for EDMC
Mr. Rakesh Mittal, Advocate for SDMC
W.P.(C) 2184/2017
AJAY JUYAL ..... Petitioner
Through: Mr. Mukesh Rana, Ms. Mansi Bajaj
Ms. Aarti Bhalla & Ms. Jayashree, Advocates
versus
STATE ELECTION COMMISSION ( NCT OF DELHI)
..... Respondent
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary
W.P.(C) 2189/2017
RAKESH KUMAR ..... Petitioner
Through: Mr. Alind Srivastava, Mr. Sudeep
Dey & Mr. Abhinav Kumar, Advocates
versus
STATE ELECTION COMMISSION AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary
Mr. Shatrajit Banerji, Adv. for respondent No.2
Ms. Poonam Kumari, Adv. for respondent No.3
W.P.(C) 2194/2017
RINKU KUMAR ..... Petitioner
Through: Mr. G.K. Kaushik & Mr. Sanjeev
Behl, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Ripu Daman Bhardwaj, CGSC
with Mr. T.P. Singh & Mr. Sahaj Garg, Advocates
for respondent No.1
Mr. Sumeet Pushkarna, Standing Counsel with
Mr. Siddhartha Nagpal, Advocates for State
Election Commission with Mr. Girish Pandey,
Deputy Secretary
W.P.(C) 2299/2017
BHUPENDER SINGH CHAUHAN ..... Petitioner
Through: Mr. R.K. Gupta, Advocate
versus
GOVT OF NCT OF DELHI AND ANR ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary
Mr. Sanjoy Ghose, ASC with Mr. Rishabh Jaitley,
Advocate for GNCTD
W.P.(C) 2300/2017
MOHIT SINGH ..... Petitioner
Through: Mr. Amit & Mr. Arvind Singh,
Advocates
versus
GOVERNMENT OF DELHI AND ANR ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary
Mr. Ankur Chibber, Advocate.
W.P.(C) 2440/2017
HARSH VARDHAN TYAGI ..... Petitioner
Through Mr. Siddharth, Advocate.
versus
STATE ELECTION COMMISSION & ORS ..... Respondents
Through Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal, Advocates
for State Election Commission with Mr. Girish
Pandey, Deputy Secretary.
Mr. Sanjay Dewan, Advocate for respondent No.2.
Mr. Suresh Chandra Sati, Central Government
Pleader.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J.:
Rule DB.
2. In view of the urgency expressed, with the consent of the parties we
have treated W.P. (C) No. 1291/2017, We the Citizen Through Secretary
Vs. Union of India & Ors., as the lead case. The respondent, The State
Election Commission (SEC, for short) has filed reply/counter affidavit in
this writ petition, which was circulated and furnished to the counsel for the
petitioners in other writ petitions.
3. Keeping in view the similarity of the issues involved, this common
judgment would dispose of the aforesaid writ petitions.
4. Elections to the South Delhi Municipal Corporation (SDMC), North
Delhi Municipal Corporation (NDMC) and East Delhi Municipal
Corporation (EDMC) are to be held in April, 2017.
5. As per Section 3 (6) of the Delhi Municipal Corporation Act, 1957
(Act, for short), upon completion of each census after establishment of the
Corporation(s), the number of seats on the basis of population of the area of
the Corporation(s) is to be ascertained and determined by the Central
Government by a notification in the Official Gazette. The said section also
stipulates that the number of seats reserved for the members of Scheduled
Castes shall, as nearly as may be bear the same ratio to the total number of
seats as the population of Scheduled Castes bears to the total population of
Delhi. The first proviso to the section, however, stipulates that the total
number of seats in the Corporations shall not exceed the figure of 272.
6. In view of the new census data for 2011, the aforesaid exercise was
undertaken by the SEC at the request of the Government of the National
Capital Territory of Delhi vide the order of the Lieutenant Governor
No.F7(55)DLB/2015/PT-1/4276-82 dated 18th September, 2015. This
notification had stipulated that the SEC shall have the power to call for
population data as per 2011 Census, census maps, census details of
Enumerated Blocks with figures of total population and Scheduled Castes
population for the said purpose from the Director of Census Operations
Delhi, and take assistance from Geospatial, Delhi and others. The SEC was
to prepare a draft delimitation order for all the three Corporations showing
the number and extent of wards in each Corporation, maps of each ward
indicating clearly boundaries on the North, West, East and South of each
ward. It was mandated that wide publicity, for inviting objections and
suggestions to the draft delimitation order, be given through press and
media. Thereafter, the final delimitation order shall be sent to the
Government for approval and publication in the Official Gazette. The
wards upon delimitation, it was prescribed, should be within one Assembly
Constituency and not cross it.
7. To undertake this onerous and immense exercise, services of
Geospatial, Delhi for satellite mapping and digitization and grouping of
wards into Enumerated Block groups were availed. This digitized data,
after recheck, was analyzed to finalize the ward boundaries. These
boundaries were compared with the boundaries of the Assembly
Constituencies, to ensure that the ward boundaries did not extend to two
Assembly Constituencies.
8. On the basis of data and details furnished by Geospatial Delhi and
after consultation with the public, Resident Welfare Associations, etc. the
proposed draft delimitation was prepared containing Corporation-wise
Enumerated Blocks data, Corporation-wise localities/colonies and the ward
maps with population figures and data. The details with regard to principles
of delimitation were adumbrated. Copy of this proposed draft was supplied
to the Members of Parliament, Members of Legislative Assembly and
Councillors. Consultations/meetings were held with the different
stakeholders.
9. Consequent to the said deliberations, the first draft delimitation order
was put up on the website, www.sec.delhigovt.nic.in, on 9th September,
2016. Simultaneously, advertisements were placed in 9 newspapers in four
different languages on 10th September, 2016, inviting the public to log on to
the website and give their comments and objections. Draft order was also
sent to the elected representatives for inviting their suggestions and
objections.
10. By 24th September, 2016, more than 700 recommendations/
suggestions were received, which were examined and studied with reference
to the guidelines or principles fixed by the SEC.
11. On 24th October, 2016, a meeting was held with the Commissioners
and Town Planners of the three Corporations to discuss demarcation of
boundaries of the wards, how municipal services would be provided as per
the new delimitation of wards, how to treat un-demarcated areas, like
green-belt etc. Discrepancies pointed out in the feedback were corrected.
12. After due analysis and deliberation, three delimitation orders with
regard to each Municipal Corporation dated 13th January, 2017 were
published by the Lieutenant Governor, under section 3 and 5 of the Act.
The orders recount that the Government had assigned the work of
delimitation of wards in the three Corporations as per the provisions of
different sub-sections of Sections 3 and 5 of the Act to the SEC. As per the
guidelines, all wards had to be demarcated within one Assembly
Constituency. In terms of power conferred by the Central Government under
sub-section (6) of Section 3 and sub-section (2) of Section 5, the Lieutenant
Governor notified 104 wards each in NDMC and SDMC and 64 wards in
EDMC. The said notification had assigned new ward numbers, new ward
names etc. The area or demarcation of each ward was fixed. Each ward has
a population of about 60,000, with variation between 10,000 to 15,000
persons.
13. Thereafter, on 3rd February, 2017, the SEC held another meeting with
members of different political parties, officers, etc. on the question of
reservation of different wards for women and Scheduled Castes. By the
notification dated 6th February, 2017 published in the Delhi Gazette, the
SEC, on the basis of the 2011 Census, has computed and fixed the reserved
seats for each Corporation as under:-
"
Name of Populati S.C. Percenta No. of No. of
M.C. on Populatio ge seats in Seats
n a reserved for
Delhi
Delhi
"
This notification also gives the name of the wards, their population,
Scheduled Castes population, their percentage, and number of seats
reserved.
14. On the question of reservation of seats/wards, the notification dated
6th February, 2017 had stipulated:-
"AND WHEREAS, now as per the Delimitation Order No.
F.7(55)DLB/2015/Pt. I/202, 203 & 204 dated, 13/01/2017 which
is based on Census 2011, the number of wards in each Assembly
Constituency have changed and the Election Commission has
decided to adopt the seat reservation for Scheduled Castes on the
basis of highest percentage of Scheduled Castes population in a
ward within the Corporation in a descending order. Thus within
the Corporation the wards with the highest percentage of
Scheduled Castes population will be reserved to the numbers as
specified above. The Analogy adopted is the same as used while
reserving Scheduled Caste seats for assembly constituencies in
Delhi."
Thus for reservation for Scheduled Castes highest percentage of
Scheduled Castes in the ward within the Corporation in descending order,
was taken as the basis. Wards within each Corporation area with the highest
percentage of Scheduled Castes population in the descending order were
reserved.
15. With regard to reservation for women, both in General seats and the
seats reserved for Scheduled Castes, this notification dated 6 th February,
2017 provides as under:-
"NOW, THEREFORE, in exercise of the powers as delegated
by Central Government and the Government of National Capital
Territory of Delhi as delegated to the Election Commission of the
National Capital Territory of Delhi as detailed in the preceding
paras and all other enabling provisions, I, S. K. Srivastava,
Election Commissioner, do hereby reserve the Wards in the
above-noted three Corporations for the specified categories as
under:-
(a) For the purpose of reservation of seats for the above-mentioned
categories, the wards with highest percentage of Scheduled
Castes, in descending order, in each Corporation have been taken
to the numbers as required to be reserved. In pursuance of the
provisions of sub-section (7) of sec.3 of the said Act, seats to be
reserved for women belonging to Scheduled Castes, from among
the seats reserved for the Scheduled Castes should not be less than
one half of the total number of seats reserved for the Scheduled
Castes. Thus 1st , 3rd , 5th numbers taken for Scheduled Castes
Women seats and rest for Scheduled Castes seats.
(b) For reservation of Wards for women and General categories, as
per provision of Sub - Section (8) of Section 3 ibid, lists of
remaining wards [after deduction of Wards reserved for S.C. (W)
and S.Cs] in sequence of serial numbers of wards in each
Corporation has been taken into consideration. In every such list,
every 1st, 3rd, 5th Ward and so on, taken as reserved for „Women‟,
as it should not be less than one half of the total number of
remaining seats and every 2nd, 4th, 6th Ward and so on, taken as
„General‟.
Consequent to the procedure adopted for reservation of Wards as
indicated above, the reservation of Wards in each of the three
Municipal Corporations, for specified categories in consecutive
serial order, is detailed in Annexure I, II & III."
Annexure I, relating to NDMC reads:-
"North Delhi Municipal Corporation
(i) Total Wards - 104.
(ii) Seats reserved for Scheduled Castes, as per the highest
percentage of Scheduled Castes population, in descending order,
are :--
Ward Numbers - 94, 45, 55, 56, 47, 91, 46, 54, 48, 69, 49, 76, 13,
74, 37, 83, 4, 92, 82 and 95 = Total - 20 Wards.
(iii) Seats reserved for Scheduled Castes as per chronological list of
wards of the North Delhi Municipal Corporation: -
Ward Numbers - 4, 13, 37, 45, 46, 47, 48, 49, 54, 55, 56, 69, 74,
76, 82, 83, 91, 92, 94 and 95 = Total - 20 Wards.
(iv) Scheduled
Castes (Women) seats: -
Ward Numbers - 4, 37, 46, 48, 54, 56, 74, 82, 91 and 94 = Total -
10 Wards. (1st, 3rd, 5th numbers taken for Scheduled Castes
Women seats and so on).
(v) Scheduled Castes seats: -
Ward Numbers - 13, 45, 47, 49, 55, 69, 76, 83, 92 and 95 = Total
- 10 Wards. (2nd, 4th, 6th numbers taken for Scheduled Castes
seats and so on).
(vi) Remaining seats: -
Ward Numbers - 1, 2, 7, 8, 10 11 12, 15 16 17 18 19 20 21 22 23,
24, 25 26 27 28 293,305,316, 32 33 34 35936, , 39, 40141 42, 43, 44, 50, 51, 52,, , ,
53, 57 58 59 60, 61, 62, 63, 64, 65, 66, 67, 68,
, , 71, 72373 75, 77, 78, 79, 80, 81,
,8
, , ,
84, 85 86 87 88, 89, 90, 93, 96, 97, 98, 99, 100,
, ,101,
, 102,
7 103
,0
, , and, 104
, ,=, , ,
, , , , , , ,
Wards. (Total Wards 104 - SC reserved Wards, , , , Total - 84
, 20 = 84 Wards
(vii) Women seats: -
Ward Numbers - 1, 3, 6, 8, 10, 12, 15, 17, 19, 21, 23, 25, 27, 29,
31, 33, 35, 38, 40,
42, 44, 51, 53, 58, 60, 62, 64, 66, 68, 71, 73, 77, 79, 81, 85, 87, 89,
93, 97, 99, 101 and 103 = Total - 42 Wards. (1st, 3rd, 5th numbers
taken for Women seats and so on).
(viii) General seats: -
Ward Numbers - 2, 5, 7, 9, 11, 14, 16, 18, 20, 22, 24, 26, 28, 30,
32, 34, 36, 39, 41,
43, 50, 52, 57, 59, 61, 63, 65, 67, 70, 72, 75, 78, 80, 84, 86, 88,
90, 96, 98, 100, 102 and 104 = Total - 42 Wards. (2nd, 4th, 6th
numbers taken for General seats and so
on).
SUMMARY: -
SC (Women) = 10 seats, SC = 10 seats = Total = 20 wards.
Women = 42, General = 42, Total = 84 Wards
20 Wards reserved for SC (Women) and SCs and 84 Wards
for women & General category = Total 104 wards."
(Similar Annexures were issued for the SDMC and EDMC)
16. The said notification, as recorded above, refers to new ward numbers
in the three Corporations, with ward name and whether the said ward would
be reserved for Women, Scheduled Caste, Scheduled Caste (Women) or
would be open to all. Noticeably, women candidates can apply for General
seats and Scheduled Caste (women) candidates can stand for Scheduled
Caste seats. Scheduled Castes male and female candidates can also stand
for General seats.
17. The petitioners have primarily challenged the notification dated 6 th
February, 2017, on the following grounds:-
(i) The criteria for reservation of Scheduled Castes wards on the basis of
highest percentage of Scheduled Castes population in a ward in descending
order is contrary to the criteria which was adopted in the elections held in
2007 and 2012 and approved by a single Judge of this Court in Ramesh
Dutta Vs. The State Election Commission, 144 (2007) DLT 286 and by a
Division Bench in Vikas & Ors. Vs. State Election Commission & Ors.,
188 (2012) DLT 390 (DB).
(ii) The reservation of wards for Scheduled Castes and women fall foul
and are contrary to Article 243T of the Constitution and the fourth proviso
to sub-section (6) to Section 3, proviso to sub-section (8) to section 3 and
clause (e), sub-section (2) to Section 5 of the Act. These clauses relate to
rotation of the reserved seats for the Scheduled Castes and women in
different wards.
(iii) The SEC has violated the undertaking and directions recorded in the
judgment in the case of Vikas (supra) that there would be rotation of the
reserved wards.
We have deliberately not expounded and elaborated on the different
facets and aspects of the contentions raised to avoid prolixity as these have
been examined below.
18. In order to decide the present lis, we would like to first reproduce
Article 243T of the Constitution and sub-sections (5), (6) (7) and (8) to
Section 3 of the Act and Section 5 (1) and 5 (2) of the Act, which are as
under:-
Constitution of India
"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 filled by
direct election in every Municipality shall be reserved for
women and such seats may be allotted by rotation to different
constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall be
reserved for the Scheduled Castes, the Scheduled Tribes and
women in such manner as the Legislature of a State may, by
law, provide.
(5) The reservation of seats under clauses ( 1 ) and ( 2 ) and the
reservation of offices of Chairpersons (other than the
reservation for women) under clause ( 4 ) shall cease to have
effect on the expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State
from making any provision for reservation of seats in any
Municipality or offices of Chairpersons in the Municipalities in
favour of backward class of citizens.
XXXX
Delhi Municipal Corporation Act, 1957
3. Establishment of Corporations
(5) The total number of seats of councilors and the number of
seats reserved for the members of the Scheduled Castes in each
Corporation, shall, at the time of establishment of such
Corporation, be as determined by the Government by
notification in the Official Gazette.
(6) Upon the completion of each census after the establishment
of a Corporation the number of seats shall be on the basis of the
population of the area of the Corporation as ascertained at that
census and shall be determined by the Central Government by
notification in the Official Gazette and the number of seats to
be reserved for the members of the Scheduled Castes shall, as
nearly as may be, bear the same ratio to the total number of
seats as the population of Scheduled Castes bears to the total
population of Delhi:
Provided that the total number of seats in all the Corporations
in Delhi shall in no case be more than two hundred and
seventy-two and the number of seats in each Corporation shall
be determined by the Government at the time od establishment
of such Corporations:
Provided further that for the first election to the Corporations to
be held immediately after the commencement of the Delhi
Municipal Corporation (Amendment) Act, 2011, the population
figures of every such Corporation as published in relation to
2011 census shall be deemed to be the population thereof as
ascertained in that census:
Provided also that the seats reserved for the Scheduled Castes
may be allotted by rotation to different wards in such manner as
the Central Government may, by order published in the Official
Gazette, direct.
(7) Seats shall be reserved for women belonging to the
Scheduled Castes, from among the seats reserved for the
Scheduled Castes, the number of such seats being determined
by the Government by order published in the Official Gazette
which shall not be less than one-half of the total number of
seats reserved for the Scheduled Castes.
(8) Seats shall be reserved for women, the number of such seats
being determined by order published in the Official Gazette by
the Government which shall not be less than the one-half of
total number of seats other than those reserved for the
Scheduled Castes:
Provided that such seats reserved for women shall be allotted
by rotation to different wars in such manner as the Government
may, by order published in the Official Gazette, direct in this
behalf
XXXX
5. Delimitation of wards.
(1) For the purposes of election of councillors, the area of a
corporation shall be divided into single-member wards in such
manner that the population of each of the wards, shall, so far as
practicable, be the same throughout the area of the corporation.
(2) The Government shall, by order in the Official Gazette,
determine,
(a) the number of wards;
(b) the extent of each ward;
(c) the wards in which seats shall be reserved for the Scheduled
Castes;
(d) the wards in which seats shall be reserved for women; and
(e) the manner in which seats shall be rotated under sub-section
(6) and (8) of section 3."
19. Article 243T of the Constitution provides that in every municipality,
seats would be reserved for Scheduled Castes (and Scheduled Tribes) and
the number of seats so reserved shall be in the same proportion as the
population of the Scheduled Castes (or Scheduled Tribes) in the Municipal
area. The extent and proportionality of reservation is with reference to the
Municipal area and not the ward in the Municipal area. The provision does
not make reference to the Parliamentary or Assembly Constituency/ies.
Clause (1) of Article 243T further states that such seats would be allocated
by rotation to different constituencies, i.e. wards in the Municipality.
Clauses (2) and (3) to Article 243T stipulates reservations for women in the
General seats and the seats reserved for Scheduled Castes, etc., which shall
not be less than one-third of the total number of seats in General and the
reserved category. We are not concerned with the other clauses of Article
243T.
20. Sub-section (5) to Section 3 of the Act states that the total number of
seats of Councillors and the number of seats reserved for the members of the
Scheduled Castes in the three Corporations shall be at the time of
establishment of the Corporation(s) determined by the Government by
notification in the Official Gazette. This clause would not be applicable as
we are not dealing with the position at the time of establishment of the three
Corporations. Sub-section (6) would be applicable in the present case. The
said sub-section stipulates that on completion of every census after
establishment of a Corporation, the number of seats to be reserved for
members of Scheduled Castes shall, as nearly as may be, bear the same ratio
to the total number of seats as the population of Scheduled Castes bears to
the total population of Delhi. Again sub-section (6) refers to the total
population of Delhi and the proportion and ratio of Scheduled Castes to the
total population. It does not mention or refer to the Assembly
Constituencies or the wards. First proviso stipulates that number of seats or
wards in all the three Corporations shall not exceed 272 and the number of
seats in each Corporation shall be determined by the Government at the time
of establishment of the Corporation. We are not concerned with the second
and third provisos in the present case, though we may notice that the third
proviso states that for the first election to be held of the Corporation after
commencement of Delhi Municipal Corporation (Amendment) Act, 2011,
the population figures in the 2001 Census shall be the basis. The fourth
proviso stipulates that the seats reserved for Scheduled Castes may be
allotted by rotation to different wards in such manner as the Central
Government may, by order published in the Official Gazette, direct. This
proviso thus states that that seats/wards reserved for Scheduled Castes may
be rotated, and, in the manner as is determined by the Central Government
by an order to be published in the Official Gazette. Sub-sections (7) and (8)
relate to reservation of women in Scheduled Caste seats and General seats,
which shall not be less than one-half of the total number of seats reserved
for Scheduled Castes and the General candidates, respectively. The seats so
reserved will be determined by the Government by an order published in the
Official Gazette. Proviso to sub-section (8) states that the seats reserved for
women shall be allotted by rotation to different wards in such manner as the
Government may state, by order published in the Official Gazette.
21. Section 5 of the Act states that for the purpose of Councillors, the
area of Corporation will be divided in single-member wards in such manner
that the population of each ward as far as practicable should be the same
throughout the area of that Corporation. This ensures that every Councillor
elected from a particular ward in the Corporation is the representative of and
is elected by equal number of persons or population. Therefore,
demarcation exercise whenever undertaken, which is required and mandated
under sub-section (6) to Section 3 on completion of each census, should
ensure that each ward consists of equal number of people/population. In
other words, on delimitation being undertaken, the area and size of the ward
can undergo a change. Dependant on increase or decrease in the size of the
population in the earlier ward/wards, area of the ward need not be the same
after the delimitation. Sub-section (2) to Section 5 is of some importance
and states that the delimitation exercise shall determine number of wards;
area of wards; the wards in which seats shall be reserved for the Scheduled
Castes; wards in which seats shall be reserved for women and; the manner
in which seats will be rotated under sub-sections (6) and (8) of Section 3.
Thus every time delimitation in undertaken, the wards, their size and
number, and the wards reserved for Scheduled Castes and women have to be
specified and indicated.
22. The Act, therefore, provides for three kinds of reservations.
Reservation for Scheduled Castes; reservation for women in the General
category, which cannot be less than 50% of the total seats for General
category and reservation of seats for women in Scheduled Castes category
which cannot be less than 50% of the seats reserved for Scheduled Castes.
23. In the present cases, there is no dispute or challenge as to the
percentage of seats which have to be reserved for Scheduled Castes in the
three Corporations. It is undisputed that 20, 15 and 11 seats out of 104, 104
and 64 seats have to be reserved for Scheduled Castes in NDMC, SDMC
and EDMC, respectively. The dispute and the issue raised is pertaining to
which ward should be declared as reserved for Scheduled Castes and for
women.
Reservation of Wards for Schedule Castes
24. We would first take up the issue with regard to reservation of wards
for Scheduled Castes. As noticed above, the notification dated 6th February,
2017, reserves wards based upon the highest percentage of Scheduled
Castes population in the wards in the descending order in each of the three
Corporations.
25. If we examine the said basis or precept for reservation, it is per se and
ex facie reasonable and fair. In fact, it would be in consonance with the
principles of reservation applicable to the Assembly Constituency in terms
of Section 38 of the Government of National Capital Territory of Delhi Act,
1991. The said Section states that reservation of Assembly Constituencies
for Scheduled Castes shall be on the basis of the Scheduled Castes‟
population in a particular constituency. In other words, Assembly
Constituencies with the highest Scheduled Caste population would be given
preference for reservation over those with lower proportion. The contention
of the petitioner, however, is that this principle or precept is different from
the principle or precept which was adopted for reservation of Scheduled
Caste wards in the 2007 and 2012 notifications. In the 2007 notification, the
criteria adopted was with reference to the highest number of Scheduled
Castes population in the Assembly Constituency in the descending order
with a further stipulation that two wards in each Assembly
Constituency/segments would be reserved for Scheduled Castes. In the
2012 notification, the reservation was again based upon ratio of the
Scheduled Castes population in each Assembly Constituency in descending
order, subject to reservation of only one ward with highest Scheduled Caste
population in each Assembly segment.
26. It may be interesting to note that the precept or criteria adopted by the
2007 and 2012 notifications was challenged in this Court primarily on the
ground that the ratio of the Scheduled Castes population in the Assembly
segments was not rational and a reasonable basis as election of the
Councillors was ward-wise. Assembly Segments or Constituencies were
not relevant for election from the wards to the Corporations. Another
contention raised was regarding rotation of the reserved seats for it was
alleged that the 2012 notification had failed to give full and fair recognition
to rotation of seats as required by Article 243T of the Constitution and the
fourth proviso to sub-section (6) to Section 3 and proviso to sub-section (8)
to section 3 of the Act.
27. The writ petitions challenging the 2007 and 2012 notifications were
dismissed for several reasons, but primarily on the ground that it was not for
the Court or the petitioners therein to fix a parameter or criteria to decide
which ward should be reserved for Scheduled Castes or women. The
contention that the reservation based upon the percentage of Scheduled
Castes population in the Assembly Segment or Constituency was irrational
and illogical was rejected for reasons set out in the two judgments. The said
judgments, however, do not hold that the ratio of the population in
Assembly Segments or Constituency would be the right or the only method
or criteria to determine or decide which ward should be reserved for
Scheduled Castes. This is not the ratio of the said decisions as was
contended by the petitioners. The principle or percept to be applied for
determining which ward/seat should be reserved is for the Government to
decide. Courts do not test the wisdom of the authorities or appropriateness
of the criteria adopted while exercising the limited power of judicial review
in such matters. Comparative merit of the options available cannot be made
the subject matter of judicial review. The precept or the principle applied in
the notification can be challenged on the grounds and reasons as were
enunciated and settled in Hem Raj Arya and Ors. Vs. Election
Commission, Delhi & Ors. 1995 (32) DRJ 231, which had dealt with the
1993/1994 notification and had upheld the same, recording the following
ratio:-
"(14) We are of the view that since no malafides on the part of the
respondents have been pleaded or proved in adopting the stated
method of reservation of seats, it is not for this Court to go into
the minute details of the manner of reservation particularly when
the Court is neither conceived with any statutory formula which
had to be applied to test the correctness of the method adopted nor
any precise fool proof mathematical formula can be spelt out for
the said purpose. The method adopted for reservation of wards
cannot be struck down merely because another method would be
more fairer, scientific or logical. The court should interfere only if
the impugned action is patently arbitrary, unconsciously unfair,
discriminatory or malafide, which as already noted, is neither
pleaded nor proved. In that view of the matter we do not find any
ground to interfere. There is no merit in the petition and the same
is accordingly dismissed. No costs."
28. This principle was reiterated by a single Judge in the case of
Ramesh Dutta (supra) in the following words:-
"38. Accordingly, I hold that these writ petitions are
maintainable. I also hold that there is no statutory requirement
for disclosing the manner of allotment of seats reserved for the
Scheduled Castes or women in the notifications issued under
Section 5(2) of The DMC Act. However, such a manner must
be discernible from the records of the Central Government
(including its delegates). The manner must be reasonable and
not arbitrary or discriminatory or mala fide. The manner
indicated in the present case of identifying seats reserved for
scheduled castes based on the twin criteria of ranking seats in
decreasing proportion of population and limiting them to not
more than two per assembly segments cannot be interfered with
as it is neither arbitrary nor discriminatory nor malafide. Even
the criterion of allotting every third seat from the list of wards
arranged as per the serial numbers of the wards for women
cannot be questioned. However, as indicated above, the
impugned notification of 17.02.2007 has gone wrong in not
uniformly applying these criteria. The same is, therefore, set
aside."
29. Similarly, in Vikas (supra), a Division Bench of this Court had held
that the SEC had carried out a considered exercise, which by no stretch of
imagination can be said to be irrational or arbitrary. The methodology
adopted cannot be struck down. When the methodology adopted by the
SEC cannot be faulted, there would be no merit in the challenge. It was
pertinently observed:-
"37. It is our view that the SEC has carried out a considered
exercise which by no stretch of imagination can be said to be
irrational or arbitrary so that it would fall foul of Ramesh
Dutta's case (supra) It has already been explained that the
methodology adopted in Ramesh Dutta's case (supra) for the
elections in the year 2007 alone was not to be implemented for
all future elections and that the exercise then carried out was
rational and reasonable though there may have been flaws in
the implementation aspect. The SEC was, thus, within its right
to adopt a modified formula."
30. We would now deal with the contention of the petitioners that the
SEC has violated the principle of rotation of Scheduled Castes seats as
stipulated by the fourth proviso to sub-section (6) to Section 3 of the Act
and Article 234T of the Constitution. The petitioners submit that in five
Assembly Constituencies/Segments in the three Corporations, three or more
wards are reserved for the Scheduled Castes as per the 6th February, 2017
notification. Our attention was specifically drawn to the Assembly
Constituency Sultanpur Majra, which has Scheduled Castes population of
44.36% and all four wards in the said Assembly Constituency have been
reserved. It was highlighted that in Sultanpur Majra Assembly Constituency
there is not even a single ward in which a General candidate can contest the
Municipal elections. Thus, no one from 55.64% of the total population in
this Constituency can stand for election in any of the wards. Another chart
filed before us indicates that as per the 6th February, 2017 notification, 20
seats/wards reserved for Scheduled Castes in NDMC would fall in 14
Assembly Constituencies, 15 reserved seats/wards for Scheduled Castes in
SDMC would fall in 10 Assembly Constituencies and 11 seats reserved for
Scheduled Castes in EDMC would fall in 5 Assembly Constituencies. In
other words, 46 seats/wards reserved for Scheduled Castes under the three
Corporations would fall in 29 Assembly Constituencies. Reference was
made to the 2012 notification, wherein 46 reserved seats for Scheduled
Castes were falling in 46 different Assembly Constituencies.
31. We do not find any merit in the said contentions. The core of the
contention raised by the petitioners is with reference to the Assembly
Constituency or Segments. We are not dealing with elections to the Delhi
Legislative Assembly and, therefore, if the SEC has not adopted and applied
and taken the Assembly Constituency/Segments as the basis, they cannot be
faulted. The fact that in the 2007 and 2012 notifications, percentage of
population in Assembly Segments and reservation based upon one or two
wards in Assembly Segments was followed cannot be a justification or
ground to strike down the 6th February, 2017 notification. In fact, it has
been urged and argued with merit that the 6th February, 2017 notification is
an improvement and refinement over the 2007 and 2012 notifications. Each
ward is a distinct and a separate area from which a Councillor is elected.
This is the unit with which we are concerned. Population in the ward and
the percentage of the Scheduled Castes population in the ward is a better
and more satisfactory method to determine which of the wards should be
reserved. Reservation based upon the population of Scheduled Castes in the
Assembly Segment may have been upheld in the litigations in 2007 and
2012, but this does not mean that there could not be any third or a better
method of reservation. There is no embargo or bar in Article 243T or the
Act which prohibits or bars the authorities from engaging themselves and
undertaking an exercise to improve and better upon the earlier
principle/criteria. We can and would appreciate every attempt to evolve and
improve the reservation criteria.
32. The SEC has given good and valid reasons as to why they have now
adopted the principle of Scheduled Caste population in the wards in
descending order to reserve the wards for Scheduled Castes candidates and
not follow the earlier criteria of the Schedule Caste population in the
Assembly Constituency. In the 2007 and 2012 elections, there were four (4)
wards in each of the 69 Assembly Constituencies/Segments. Thus, the
number of wards in each Assembly Constituency was identical i.e. four (4).
Population of each ward was 40,000. This is not the position after the
delimitation order dated 17th January, 2017. The numbers of wards in each
Assembly Constituency vary between 3 to 7 and are not uniformly four (4)
in number. Each ward today has a population of approximately 60,000.
Earlier the population of each ward was about 40,000. The area of each
earlier ward had to be re-drawn and increased or decreased, for growth of
population in the old wards was not uniform and was different. This
exercise was undertaken based upon the 2011 Census and with the help and
assistance of data, satellite maps etc. provided by Geospatial, Delhi.
Therefore, the ward area in 90% of the wards has undergone a change.
Further, the serial number given to the wards has also changed. New
numbers have been given, as per the criteria noted below. This aspect would
be of significance when we examine the question of rotation of wards for
reservation for Scheduled Castes or women.
33. Coming to mandate of rotation, we feel that the said principle is not
violated by the 6th February, 2017 notification. Whenever a delimitation
exercise is carried out in terms of sub-section (2) to Section 5, the wards
change and the reserved wards have to be specified. Sub-section 6 to
Section 3 of the Act mandates delimitation exercise after every census. This
delimitation must account for shift and movement of Schedule Caste
population from one ward to the other. In the present delimitation exercise,
a new and different criteria was rationally applied to demarcate the wards,
and also to identify the reserved wards for the Scheduled Castes. We do not
think that there is any bar or prohibition in the Act or Article 243T of the
Constitution on adopting or applying a new method to identify which ward
should be reserved.
34. As already held above, there can be always improvement on the
earlier principle or precept. Further, it would be incorrect to hold that there
is no rotation of the Scheduled Castes wards or there has been bunching.
The argument of bunching is fallacious for the reason it proceeds as if the
Assembly Constituency is the defining criteria. This is not correct and is
not mandated by the High Court in Ramesh Dutta (supra) or Vikas (supra).
Further, as noticed above, the reserved seats in the three Corporations are
spread over 29 different Assembly Segments. In fact, in the 2007 election,
the reserved seats for the Scheduled Castes would have been spread and
divided in only 23 Assembly Segments. (In 2007, two seats/wards in each
Assembly Segment with the highest Scheduled Caste population in
descending order were reserved).
35. There is a distinction between Section 5 (2) and sub-sections (6) and
(8) of Section 3 of the Act. Section 5 (2) deals with the notification which is
issued after delimitation exercise is undertaken. On each occasion when
delimitation exercise is undertaken, clauses (c) and (d) to sub-section 2 to
section 5 require that reservation of wards for Scheduled Castes and women
should be made. Clause (e) of sub-section (2) to Section 5 of the Act states
that at the time of delimitation exercise, the authorities will also prescribe
the method of rotation in future elections till another delimitation exercise is
undertaken or otherwise changes are made. Principle of rotation would only
apply after the first election is held post the delimitation order.
36. We would accept the argument that while conducting the delimitation
exercise and fixing the reserved wards, the authorities should take into
account and consider the wards or seats which were earlier reserved, for this
is the intent behind Article 243T and sub-sections (6) and (8) of Section 3,
and Section 5 (2) of the Act. The provision requires that there should be
shift or change of the reserved wards and these should not remain static.
This aspect has been duly accounted for and taken into consideration in the
delimitation order dated 6th February, 2017 under Section 5(2) of the Act.
37. In view of the aforesaid discussion, we reject the challenge made by
the petitioners to the notification dated 6th February, 2017, reserving
different wards on the basis of percentage of Scheduled Castes population in
the wards in descending order. This test/criteria cannot be faulted and struck
down. It is an improvement and refinement on the earlier criteria, which had
taken Assembly Constituencies/Segments as the basis.
Separate Notifications
38. One of the petitioners had raised the contention that two separate
notifications cannot be issued under Section 5 (2) dealing with clauses (a)
and (b) and then clauses (c) and (d). It was urged that the notification dated
13th January, 2017 deals with clauses (a) and (b) of Section 5 (2), whereas
the notification dated 6th February, 2017 deals with clauses (c) and (d) of
Section 5 (2) of the Act. The contention is only to be noted and rejected.
There is no such stipulation in sub-section (2) to Section 5 and we would
not like to infer any such restriction. Section 6 of the Act empowers the
Corporation with the previous approval of the Government from time to
time by order in the Official Gazette, to alter or amend any order made
under Section 5.
Violation of the directions and statements recorded in Vikas (supra)
39. Similarly, we would reject the contention based upon the statement
made by the Standing Counsel of the Government of NCT of Delhi as
recorded in the judgment in Vikas (supra). The relevant portion of the
judgment to which our reference was drawn, reads:-.
"31. We had posed a specific query to learned counsel for the SEC
as to whether in future apart from rotation of seats for women, it
was envisaged that there would also be rotation of seats reserved for
SC category. Learned Standing Counsel for the GNCTD, Mr. Najmi
Waziri, appearing on behalf of the SEC categorically stated in the
affirmative. We may note at this stage that the plea of the petitioners
that if data of 2011 is available, the next election would be held on
the basis of Census of 2011 and, thus, different population ratios in
different Assembly Constituencies/wards may come into play but
that, in our considered view, is a different matter....
XXXXX
38. In the present election we face a prospect of three separate
Municipal Corporations. The wards have been divided between the
three Corporations. Different possibilities were examined as to how
best the reservations policy could be implemented keeping in mind
the twin principle, i.e, areas where there is a greater population of
SC should be reserved seats/wards and each Assembly should not
have more than two reserved wards. It is nobody's case that the
second objective has not been achieved. In so far as the first
objective is concerned, there are cases where a particular ward
having a greater percentage of SC population would have been
reserved while another ward having more SC population has not
been reserved but that is on account of a changed formula where a
larger spread of population has been taken into account, i.e, the
population of SC in an Assembly segment to arrange the
constituency in a descending order on the basis of the SC
population. Such SC population for an Assembly segment is in turn
based on the totalling of the SC and the total population for each
ward. Thus, the ward remains the unit and it is not as if the
Assembly segment has become a unit. However, in order to achieve
a greater spread, the methodology under challenge has been
adopted. We may also note another aspect arising from the rotation
of seats which will take place not only of the women candidates but
also of the SC candidates as has been assured by the counsel for the
SEC before us qua the future elections. These would be in
consonance with the 4th proviso to sub-section (6) to Section 3 of
the said Act. Print outs of the slides annexed to the counter affidavit
giving different options for reservation seek to conclude that the
first system achieved the twin objective of spreading the reserved
seats throughout the Corporation jurisdiction for SC and women
while on the other hand the second system ensures that only those
wards having highest SC population can be reserved in AC and
specific Corporation while the third system leads to bunching of SC
seats."
The statements recorded have not been violated, for there is rotation of seat
as the area of wards has undergone a change. Physical demarcation of about
90% wards has been modified or changed. Further, the statement would not
bar or prohibit the authorities from undertaking the delimitation exercise in
terms of sub-section (6) to Section 3 and Section 5 of the Act. Paragraph 31
of the judgment in the case of Vikas (supra) notices and acknowledges that
the next elections, due in 2017 would be on the basis of Census of 2011 and
thus different population ratios in wards or assembly constituency, as the
case may be, would come into play and this would be a different matter.
Paragraph 38 acknowledges and accepts the argument raised by the SEC,
when challenge was made to the 2012 notification on the ground that it had
applied the formula of Scheduled Caste population in the Assembly
Segment and not the Scheduled Caste population in the ward. In this
context, it was observed that there would be rotation of seats not only for
women candidates, but also for the Scheduled Caste candidates in the future
elections, for which assurance was given by the SEC. These paragraphs do
not take the matter forward and would not help us in deciding the present
controversy in favour of the petitioners.
40. However, it would be for the authorities to consider notifying the
method or manner of rotation of seats in terms of clause (e) to Section 5(2),
when they carry out a delimitation exercise and issue a notification for
reservations of wards/seats for Scheduled Castes as well as women candidates.
If the manner and method of rotation is specified, it would possibly prevent
disputes and controversies of this nature and would ensure that there is
proper rotation of reserved seats, which should be encouraged and is
required under Article 243T as well as sub-sections (6) and (8) to Section 3
and, Section 5 (2) of the Act. The method indicated is not final and can be
always modified and changed, if required, as is permitted and allowed by
Section 6 of the Act.
Violation of the Notification dated 18th September,2015.
41. Counsel for Soma Rani in W.P. (C) No. 1632/2017 had submitted that
as per notification dated 18th September, 2015 boundary of a ward in a
Corporation should be carved within the boundary of the relevant Assembly
Constituency and should not cross it. It was submitted that in respect of
eight wards, namely, 30-N Bawana, 31-N Pooth Kalan, 37-N Nilothi, 40-N
Nithari, 51-N Nihal Vihar, 52-S Mahavir Enclave, 5-E Dallupura and 8-E
Kalyanpuri 1 there is violation as vide de-limitation exercise, the ward
boundaries have crossed into two Assembly Constituencies. We do not find
any merit in the said contention. Paragraph 8(v) in the said writ petition
would indicate that Assembly Constituencies in which the wards were
located have changed. The de-limitation notification does not violate the
order dated 18th September, 2015 that the boundary of the ward in the
Corporation should be within the boundary of one legislative constituency.
Area of each ward as demarcated in the de-limitation exercise does not fall
within the two Assembly Constituencies. The notification dated 18th
September, 2015 had not stipulated or stated that the area of the wards
cannot be shifted or made part of an area under another Assembly
Constituency. It is accepted that the petitioner Soma Rani did not file any
objection when the draft de-limitation list was published inviting
suggestions and objections from the public on 9th September, 2016. As
noted above, almost 700 objections/suggestions were received and were
taken into consideration before the final de-limitation order dated 13th
January, 2017 was published. We should not permit the petitioner- Soma
Rani- to raise objections of this nature as she had failed to respond or make
any suggestion when the de-limitation exercise was in progress and
opportunity was given to the public to raise objections.
RESERVATION FOR WOMEN
42. Not less than 50% seats in both General and those reserved for
Scheduled Castes have to be reserved for women. As per the proviso to
sub-section (8) to Section 3, General seats reserved for women should be
rotated in different wards in a manner as the Government, by an order
published in the Official Gazette, may decide.
43. Grievance of some of the petitioners is that the seats/wards in the
General and Scheduled Castes category, which were earlier reserved for
women in 2007 and 2012, should have been rotated and not reserved for
women candidates. In other words, the wards/seats earlier reserved for
women should have been specifically made open to all candidates. In
particular, our attention was drawn to the 27th January, 2012 notification in
respect of reservation of seats for women to point out that in this election
seats at Serial Nos. 1, 3, 5 and so on (odd) were reserved for women in the
Scheduled Castes category and seat Nos. 2, 4, 6 and so on (even) were
reserved for Scheduled Castes. Similarly, in the General list, every first,
third and fifth (odd) were reserved for women and every second, fourth and
sixth (even) ward was taken as General wards. The said odd/even table has
been followed in the notification dated 6th February, 2017 as the first, third
and fifth number in Scheduled Caste reserved wards are reserved as
Scheduled Caste women‟s seats and every first, third and fifth ward in
General/Open category are reserved for women.
44. We do not find any merit in the said contention for several reasons.
As per the Act, not less than 50% of the wards have to be reserved for
women in both General and Scheduled Caste categories. Accordingly 45
wards, out of 89 General wards, have been reserved for women in SDMC,
27 out of 53 General wards have been reserved for women in EDMC, and
42 out of 84 General wards have been reserved for women in NDMC.
Similarly, out of 20 seats reserved for the Scheduled Castes in NDMC, 10
seats have been reserved for SC women, out of 15 reserved seats for the
Scheduled Castes in SDMC, 8 have been reserved for SC women and out of
11 reserved seats for the Scheduled Castes in EDMC, 6 have been reserved
for SC women. The contention of the petitioner relying upon mere serial
number and then referring to the notification dated 27 th January, 2012 and
6th February, 2017 overlooks the fact that the ward numbers have undergone
a change. The ward numbers, which were allocated and to which reference
is made in the notification dated 27th January, 2012 are not in the same
seriatim in the notification dated 6th February, 2017. The new ward numbers
have been given on the basis of satellite imaging and demarcation exercise
undertaken by the SEC with the 2011 Census data and help and assistance
of Geospatial, Delhi. There is one ward for 60,000 persons. Earlier each
ward was for 40,000 persons. Delimitation has resulted in change of actual
physical boundaries in 90% of the wards, compared to the wards in the
election held in 2012. Further, the number of wards in each constituency
has undergone a change in 50% of the Assembly Constituencies. Earlier
there were four in each Constituency. Now the number of wards varies
between 3 to 7. New ward numbers have been awarded with reference to
number of wards in each Assembly Constituency by giving numbers in
seriatim in the clock-wise direction. This pattern has been uniformly
followed. The petitioners could not controvert or challenge the aforestated
factual facets.
45. In the aforesaid light, it is apparent to us that mere reference to even
or odd numbers in the General category and the Scheduled Castes category
for reservation of women does not mitigate against rotation, for the ward
numbers themselves have undergone a change and are not identical to the
2012 notification. The SEC has also justified and given the reason why they
have taken odd number for reservation of women. Not less than 50% of the
wards have to be reserved for women in the two categories.
46. Counsel appearing for the petitioner Ramvir Vats in Writ Petition (C)
No. 1906/2017 had submitted that total of 114 wards in the General
category were reserved in the 2012 and 2017 elections in the three
Corporations. There is rotation or change in wards reserved for women in
General category in 51 wards, whereas there is no change or rotation in 63
wards. In 2007 elections 33% seats were reserved for women. 34 General
wards reserved in 2007 have continued to remain reserved for women in
2017 elections.
47. The aforesaid data would show that there has been rotation of seats
reserved for women in the General category though all seats/wards reserved
in the last election for women in the General category, if we go by the
names of wards, have not been de-reserved or made open to all. However,
this would not, in our opinion, be good and sufficient reason to quash the
notification dated 6th February, 2017. Firstly, the ward areas have
undergone a change and mere reference to the ward names would be
deceptive, when we decide the question of rotation of wards reserved for
women. The argument loses much of its force as the area of 90% of the
wards has undergone a change. De-limitation exercise was carried out with
twin-fold criteria and objective. Each ward should have a population of
about 60000 and the ward should be located within one Assembly
Constituency and not overlap. When the said intricate and tricky exercise
was undertaken, there were number of options available to the SEC to
demarcate wards which would be reserved for women. Each option had
positive and negative facets. The selection of the option was after an
elaborate exercise with discussion and consultation with the stakeholders,
i.e. political parties, members of the public etc., who were asked for their
suggestions.
48. It may be true that in some cases like Dabri Ward No. 305, there is no
change in the ward limits/area and the ward was also earlier reserved for
women in the 2012 elections as is the case set up by Harsh Vardhan Tyagi
in Writ Petition (C) No. 2440/2017. The reason is that a new criteria or
method for reservation has been followed vide notification dated 6 th
February, 2017. When the new method was applied, it is possible that some
wards, which were earlier reserved and had not undergone a change in
area/demarcation would remain reserved for women. This by itself would
not be a ground to strike down the notification. The requirement in law is to
reserve not less than 50% seats for women. If this is the position, then some
wards which were reserved earlier would continue to remain reserved even
in the second election. The SEC has not followed the criteria of complete
rotation of wards, i.e. the wards which were earlier reserved for women
being de-reserved now and the wards unreserved becoming reserved for
women. They have followed a different criteria, which we find is just, fair
and reasonable. The notification dated 16th February, 2017 cannot be faulted
and rejected on the said test.
49. One can always argue that a better or more appropriate method could
have been adopted for reservation of wards for women keeping in mind
rotation of seats. However, each method or criteria adopted would have its
advantages and drawbacks. Sometimes what is perceived as a better option
may have and create difficulties and problems on implementation. These are
complex and difficult matters in which the „experts‟ have to be given
latitude and play in the joints. In the present case, the aforesaid exercise
was carried out after wide discussion and consultation with the
representatives of recognised political parties and others. The political
parties have not thought it appropriate to challenge and question the
notification dated 6th February, 2017. Clearly they are satisfied with the
reservation formula, including the rotation of seats reserved for women. It
will not be appropriate and proper to question the reservation notification
and the precept or criteria prescribed, at the behest of handful of persons,
who at best claim that they have a better or more logical method of
reservation for women as it would result in rotation of a higher number of
seats. It could be wrong and fallacious to accept the said submission.
50. Thus, we conclude that based upon 2011 Census data and the
responses and suggestions made, a change was made in the criteria for
identifying wards which should be reserved for Scheduled Castes. The
criteria applied is that the highest proportion of population in the ward
within the geographical area of the Corporation, should be reserved. This
list of wards was made in descending order. To ensure that not less than
50% wards in the three Corporations are reserved for women in the
Scheduled Castes and General categories, wards at Serial No. 1, 3, 5 and so
on (odd) are reserved. The requirement of rotation is not violated, for the
area of the wards in 90% of the wards and ward numbers have undergone a
change. The mandate of Section 5(2) of the Act has been followed.
51. In view of the aforesaid position, we do not find any merit in the
present writ petition for we find that the SEC has followed a rational
criterion in the de-limitation exercise in reservation of wards for the
Scheduled Caste population as well as for women candidates in both
General wards and wards reserved for Scheduled Castes. The criterion
adopted is after wide consultation and discussion with the stakeholders,
including political parties and members of the public. There is no violation
of the principle of rotation of seats as stipulated in sub-section (6) and (8) of
Sections 3 and sub-section (2) to Section 5 of the Act and Article 243T of
the Constitution.
52. With the aforesaid observations, the writ petitions are dismissed,
without any order as to costs.
(SANJIV KHANNA)
JUDGE
(CHANDER SHEKHAR)
JUDGE
MARCH 23rd, 2017 NA/ssn
