Rajkumar Yadav vs State Of Mp
2021 Latest Caselaw 458 MP

                                      1                            WP.2044.2021

                    The High Court of Madhya Pradesh
                              WP.2044.2021
             [Rajkumar Yadav & Another Vs. State of M.P. & Ors.]
Gwalior dated 04.03.2021

      Shri Pratip Visoriya, learned counsel for the petitioners.

      Shri    Ankur   Mody,    learned    Additional    Advocate    General   for

respondent/State.

Learned counsel for the rival parties are heard on the question of

admission and interim relief as prayed for.

1. Challenge herein is to the constitutional validity of the Madhya Pradesh

Municipalities (Reservation of Office of Mayor and President) Rules, 1999 (for

brevity "1999 Rules") to the extent these rules do not provide for the mode of

rotation for reservation to the office of President of Municipality and are thus

not in tune with the constitutional scheme of Art.243T which in express terms

mandates rotation as a mode for reservation of all seats to be filled by direct

election in all subsequent elections including the seat of Chairperson/President.

2. Learned counsel for the rival parties have taken us through various

provisions of Chapter IX A of the Constitution which was incorporated by way

of Constitution 74th Amendment Act 1992 with effect from 01.06.1993. The

relevant Articles i.e. 243R, 243T, 243ZA, 243ZG and 334 for ready reference

and convenience are reproduced below:

"243R. Composition of Municipalities:

(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.

(2) The Legislature of a State may, by law, provide-

(a) for the representation in a Municipality of-

(i) persons having special knowledge or experience in 2 WP.2044.2021

Municipal administration;

(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;

(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;

(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S:

Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;

(b) the manner of election of the Chairperson of a Municipality.

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 3 WP.2044.2021

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.

243-ZA. Elections to the Municipalities.--

(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243K.

(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities.

"243-ZG. Bar to interference by Courts in electoral matters. -

Notwithstanding anything in this Constitution, -

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

334. Reservation of seats and special representation to cease after seventy years.- Notwithstanding anything in the foregoing provisions of this Part, the provisions of this Constitution relating to-

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and

(b) the representation of the Anglo Indian community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of seventy years from the commencement of this Constitution:

Provided that nothing in this article shall affect any representation in the House of the People or in the legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be."

2.1 Combined reading of aforesaid Articles reveals that every State is 4 WP.2044.2021

mandatorily required to constitute Nagar Panchayat, Municipal Council or

Municipal Corporation as the case may be for different urban areas of different

population, except for areas where municipal services are adequately managed

by an industrial establishment, if notified as industrial township.

2.2 Clause (1) and as well as Clause (3) of Art.243T relating to seats to be

filled by direct election and seats to be filled by women respectively both

expressly provide that the allocation of seats so reserved may be by the process

of rotation between different constituencies in a Municipality.

2.3 Therefore, the constitutional scheme contained in Art.243(T) recognizes

the concept of rotation to eliminate the possibility of blocking of only few seats

which got reserved in the initial election [at the time of constitution of

Municipality] for SC/ST/OBC/Women, for perpetuity, which would be

abhorrent to the democratic concept of equal and reasonable opportunity of

contesting as a candidate and of being represented as a voter by persons of

different categories and classes in the society.

3. The scheme as regards reservation contemplated by the Constitution

reveals the following salient features:

1. The reservation for seats/wards filled by direct election in a

Municipality is a temporary provision since it is expressly mandated

u/Art.243T(5) that this reservation would cease to exist on expiry of

period stipulated in Art.334.

1.1 Art.334 which has overriding effect over all the provisions in the

Constitution relating to reservation, stipulates in mandatory terms that

the reservation of seats for SC/ST in the Parliament and the Legislative 5 WP.2044.2021

Assemblies of States shall become ineffective on expiry of period of 10

years which has now been extended to 80 years, by repeated extensions

by way of Acts of Parliament promulgated every 10 years and as it

stands today the said reservation shall cease to have effect in January,

2030.

2. Pertinently, Art.243T which is the only provision providing for

reservation in seats/wards in Municipalities expressly lays down the

procedure for reservation for seats/wards to be filled by direct election

but does not expressly provide for procedure for reservation to the office

of Chairperson of Municipality except providing in Art.243T(4) that

reservation to the office of Chairperson shall be in such manner as the

legislature of the State by law provides.

2.1 The M.P. State Legislature pursuant to Article 243T(4)

incorporated Section 29B in M.P. Municipalities Act w.e.f. 21.04.1997

which has the following salient features:

(a) The calculation of number of offices of President to be

reserved would depend upon the population of the particular

category SC/ST in all the Municipalities constituted in the State

of M.P. taken together and comparing the same with the total

population of all the municipal areas within the State of M.P. put

together and thereby arriving at the percentage of reservation

extendable to a particular category.

(b) 25% of the offices of President of all Municipalities in the

State of M.P. shall be reserved for OBC;

6 WP.2044.2021

(c) As nearly as possible 50% of all the offices of President in

all the Municipalities in the State of M.P. shall be reserved for

women belonging to SC or ST or OBC, as the case may be.

(d) As far as possible 50% [including the number of offices of

President reserved for women belonging to SC, ST or OBC] of

the total number of offices of all Municipalities in the State of

M.P. shall be reserved for women.

(e) The manner and the nitty gritties of working out this

reservation has been left by the legislature in Sec.29B of M.P.

Municipalities Act, 1961, to be prescribed by subordinate

legislation.

(f) Section 29-B of M.P. Municipalities Act, 1961 for ready

reference and convenience is reproduced below:-

"29B. Reservation of the office of President of the

Council. -

(1) Out of total number of offices of Presidents of Municipal Councils and Nagar Parishads, as the case may be, in the State, such number of offices of President shall be reserved for Scheduled Castes and Scheduled Tribes, as shall bear the same proportion, as nearly as possible, as the population of each of these categories within the limits of all the Municipal Councils and Nagar Parishads, as the case may be, in the State bears to the total population.

(2) As nearly as possible, twenty five per cent of the total number of offices of Presidents of Municipal Councils and Nagar Parishads, as the case may be, shall be reserved for Other Backward Classes.

(3) As nearly as possible [fifty percent] of the total number of offices of Presidents reserved under sub-sections (1) and (2) shall be reserved for women belonging to the Scheduled Castes or Scheduled Tribes or Other Backward Classes, as the case may be.

7 WP.2044.2021

(4) As nearly as possible [fifty percent] (including the number of offices reserved for women belonging to the Scheduled Castes, Scheduled Tribes or Other Backward Classes) of the total number of offices shall be reserved for women.

(5) The aforesaid reservation shall be made in such manner as may be prescribed.

(6) The reservation of offices of Presidents under sub- sections (1), (2) and (3) shall cease to have effect on expiration of the period specified in Art.334 of the Constitution of India.

Explanation. - In this section and in Section 29-A, the expressions "Scheduled Castes", "Scheduled Tribes" and "Other Backward Classes" shall have the same meaning as assigned to them, in the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (No. 21 of 1994).]

(g) Pursuant to the said power u/Sec.29B(5), the State framed

1999 Rules, the salient features of which are as follow:

(i) Rule 3 stipulates that for the purpose of reservation,

the office of President of Municipality shall be treated as a

separate unit, meaning thereby that while calculating

percentage of reservation enumerated in Sec.29B the

number of seats/wards in a particular municipality would

become irrelevant and the calculation would be based on

the total offices of President in the entire State of M.P.

(ii) Rule 5 provides for manner of reservation to the

office of President at the time of first election on the

constitution of any municipality. Rule 5 essentially

provides two different stages to work out reservation which 8 WP.2044.2021

are as follow:

(a) To calculate the percentage of reservation the

comparison between the total number of population

of that particular category within the municipal

limits of all the Municipalities in the State of M.P.

put together shall be taken into account and

compared with the total population of all the

municipal areas within the State of M.P. put

together. The percentage would be arrived based on

the proportion between these two figures.

(b) After arriving at this percentage as aforesaid

to decide as to which particular office of President

is to be reserved and which not, the guiding factor

stipulated in Rule 5 is that such offices shall be

reserved in descending order in which percentage

of population of SC/ST is highest. Meaning thereby

that if the reservation relates to SC then that

Municipality, among all the Municipalities in State

of M.P., where population of SC/ST is found to be

maximum, shall be reserved first and so on and so

forth.

(iii) For every subsequent election, the procedure for

working out reservation is provided in Rule 6 which can be

summarized in the following manner:

9 WP.2044.2021

(a) The procedure for reservation prescribed for

the initial election in Rule 5 would be adopted for

reservation in all subsequent elections;

(b) But while doing so, the reservations which

are to be made by lot shall be by rotation system;

(c) And for this purpose names of

municipalities, offices of which have been reserved

for a particular category shall not be included in the

lot for reservation of that category until such

municipality comes again in the order of

reservation;

(d) The explanation to Rule 6 further provides

that the same rotation system would be adopted for

the category of women including women of

SC/ST/OBC.

4. From the above enumeration of constitutional and statutory provisions, it

is obvious that adoption of means of rotation system while working out

reservation against all the seats/wards any any municipality, is constitutionally

prescribed whereas Rule 5 and 6 of 1999 Rules appear to expressly prescribe

adoption of rotation system only in respect of category of women/OBC where

the reservation is made by lots. The necessary implication of this appears to be

while working out reservation qua SC/ST category, there is no express

provision enabling adoption of rotation system.

4.1 The thrust of arguments of learned counsel for the State Shri Mody, 10 WP.2044.2021

Additional Advocate General is that for SC/ST category neither the Constitution

nor 1961 Act nor 1999 Rules permit rotation system to be followed for working

out reservation and therefore if office of President of a particular municipality

was initially reserved for SC then it can continue to be reserved for the same

category i.e. SC in all subsequent elections for all times to come.

5. So far as objection of respondent/State regarding maintainability is

concerned, Article 243-ZG of the Constitution is worth consideration which

bars interference by Court in electoral matters. Same is reproduced for ready

reference:

243-ZG. Bar to interference by Courts in electoral matters.-- Notwithstanding anything in this Constitution.--

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243 ZA shall not be called in question in any Court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

5.1 Similarly, Section 20 of the M.P. Municipalities Act, 1961 deals with

Election Petition and it starts with non obstante clause that no election or

nomination under this Act be called in question except by a petition presented

before District Judge of the concerned revenue district in which the election is

held in accordance with the provisions of the Section. This provision bars the

challenge to election or nomination except by election petition. In such legal

backdrop it is to be seen whether the procedure which is under challenge gets

the umbrella of election process or its a prelude to the commencement of 11 WP.2044.2021

election process.

6. The Apex Court in the case of N.P. Ponnuswami Vs. The Returning

Officer, AIR 1952 SC 64, Mohinder Singh Gill and another Vs. Chief

Election Commissioner New Delhi and others, (1978) 1 SCC 405, Lakshmi

Charan Sen and others Vs. AKM Hassan Uzzaman and others, (1985) 4

SCC 689, Indrajit Barau V. Election Commission of India, AIR 1986 SC

103, Election Commission of India Vs. Ashok Kumar and others, (2000) 8

SCC 216 and recently in the judgment of Dravida Munnetra Kazhagam

(DMK) Vs. Secretary, Governor's Secretariat & Ors., (2020) 6 SCC 548 has

discussed this aspect and found that election process starts from the notification

and for facilitation of election proceedings, scope of interference exists prior to

it and in the case of Ashok Kumar (supra), Apex Court has concluded in

following words:-

"For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-

1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards 12 WP.2044.2021

completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

6.1 Therefore, this petition appears to be maintainable.

7. Other contentions of learned counsel for the State in the considered

prima facie opinion of this Court are fallacious for the following reasons:

(i) The mode of rotation for working out reservation is

constitutionally provided in Art.243T(1) qua all seats/wards which are 13 WP.2044.2021

filled by direct election.

(ii) The seat of office of the President of a municipality is filled by

direction.

(iii) Once Art.243T recognizes rotation as a permissible means to work

out reservation for seats/wards and 243T(4) leaves it to the legislature of

the State to provide for manner of reservation to the office of the

Chairperson by making law, then there is no reason why the system of

rotation cannot be adopted while working out reservation for office of

the Chairperson.

(iv) The rotation system instills rationality in the process of working

out reservation and simultaneously eliminates vice of arbitrariness

created by blocking of the same seats of Chairperson for a particular

category SC or ST right from the initial election to all subsequent

elections.

(v) The blockage of a select few offices of Chairperson deprives the

remaining unreserved offices of Chairperson from being represented by

SC/ST candidate for all times to come.

(vi) The aforesaid situation is undemocratic in nature as it impliedly

disqualifies a particular voter not belonging to SC/ST from contesting for

the seat of President of Municipality which is reserved for SC/ST in

perpetuity.

(vii) Similarly, this situation also prevents the population within the

municipality the office of President of which is perpetually reserved for

SC/ST, from being represented by President belonging to categories 14 WP.2044.2021

other than SC/ST.

(viii) This arbitrary system of non-rotation is abhorrent to the very

objective behind the concept of reservation. Reservation is provided in

the Constitution for socially and educationally backward persons of the

SC/ST by making available space for them to get socially and

educationally empowered and stand shoulder to shoulder with the

members of unreserved category and together to take the nation to new

heights of achievements and excellence.

7.1 By its very nature, the concept of reservation is temporary and thus

cannot assume a perpetual nature. It is inherently based on the assumption that

temporary assistance to the educationally and socially backward persons would

enable them to gain confidence and compete with the unreserved populace on a

level playing field.

7.2 However, the fact of reservation having initially provided for 10 years

qua the seats in the Parliament and the State Legislative Assemblies and

thereafter having been extended since last 70 years after independence does not

in any manner change the very foundational nature of reservation being

temporal. It is undisputed that reservation will have to be given up in all fields

of life at some point of time in future or to be rationalised as per requirement.

7.3. The policy of reservation as embedded in Constitution is one of the

affirmative steps taken as a welfare State by the Constitution Makers to bring

weaker sections of the society into political, administrative and social main

stream and it has served to some extent the laudable purpose also, but still

desired objectives are yet to be achieved, specially to bring more weaker 15 WP.2044.2021

segment of society (within the weaker section) into the fore and their

educational amelioration. On this touchstone, rotation is the most appropriate

device, otherwise particular constituency would be reserved in perpetuity and

reserved pocket boroughs would be created to the detriment of people of

weaker sections / more weaker sections living in other constituencies and they

would never get a chance to represent their constituency. Inequality of

opportunities to represent is an antithesis to such affirmative step. Therefore,

rotation is in line with constitutional spirit.

7.4 The prima facie opinion is bolstered by the spirit echoed by the Hon'ble

Apex Court in the case of K.Krishna Murthy (Dr.) and Ors. Vs. Union of

India and Anr., (2010) 7 SCC 202 and relying upon this judgment, Division

Bench of Allahabad High Court in a bunch of Public Interest Litigations in case

of Sant Ram Sharma Vs. State of Uttar Pradesh and Ors. (Public Interest

Litigation No. 54764 of 2015 decided on 9/10/2015) has held that object of the

principle of rotation is to ensure that no community or reserved category can lay

a claim to a reserved seat in perpetuity. Therefore, it appears that rotation is the

most egalitarian way of reducing inequality in the realm of public

representation.

8. Thus, the system of rotating of SC/ST seats in the offices of Chairperson

among all the municipalities turn by turn counters the adverse effect of

reservation in general and also prevents blocking of a few offices of

Chairperson of Municipalities in perpetuity for SC/ST.

9. To save Rule 6 of 1999 Rules from being rendered constitutionally

invalid, this Court deems it appropriate to adopt the principle of harmonious 16 WP.2044.2021

interpretation by prima facie holding that the system of rotation is inherently

prescribed in Rule 6 for reservation of SC and as well as ST in the office of

Chairpersons of Municipalities for all subsequent elections. Consequently, the

act of official respondents in reserving the seat of office of the Chairperson of

Municipal Council Indergarh, District Datia (M.P.) for SC/ST since last several

elections is prima facie violative of Article 243T.

10. Accordingly, as an interim relief, it is directed that the Notification/Order

dated 10.12.2020 (Annexure P/3) reserving the office of the Chairperson of

Municipal Council Indergarh, District Datia (M.P.) for SC is stayed.

11. The Competent Authority is free to issue fresh notification u/Sec.29B of

1961 Act for the purpose of reservation in the office of Chairperson, Municipal

Council Indergarh, District Datia (M.P.) after adopting the process of rotation.

12. The aforesaid arrangement shall remain subject to the final decision in the

matter.

13. Admittedly till so far, notification has not been issued by the State

Government and looking to the submissions of parties, it appears that petitioner

has strong prima facie case in his favour, therefore, this interim order has been

passed. Respondents are at liberty to file a detailed reply to counter the

submissions of the petitioner so advanced.

List in the month of April, 2021 for further orders.

                                            (Sheel Nagu)                                        (Anand Pathak)
                                               Judge                                                Judge
    pd

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AR
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        Date: 2021.03.04 18:25:45 +05'30'