Anop Chand Ghiya v. State of Rajasthan — 1960 DIGILAW 315 (RAJ)

SARJOO PROSAD, C.J.—The petitioners have prayed in this case for a writ of mandamus directing the State of Rajasthan to determine the wards of Ladnun Municipality under sec. 10 of the Rajasthan Town Municipalities Act, 1951, (Act No. XXIII of 1951 — hereinafter called the Municipal Act). They have also prayed for a direction that fresh elections should be held on the basis of wards which may be newly formed. The petitioners are residents of Ladnun and their names are borne on the Electoral Rolls of the Ladnun Town Municipality. Their grievance is that the wards of the Municipality were not determined on the population basis, but have been so arranged as to deprive a particular community of its right of fair representation on the Municipal Board. They accordingly claim that the wards should be properly delimited and determined and a fresh election should be held on the basis of the newly determined wards. 2. It appears that prior to the elections in May, 1955, the wards of the Municipality were defined. They consisted of 19 wards each ward being a single-member constituency entitled to return a representative on the Municipal Board at the General Elections. In other words the constitution of the Board was to consist of 21 members, 19 members to be elected, one from each ward and two members to be nominated. The case of the petitioners is that an artificial and arbitrary basis was adopted in dividing the Municipal limits into various wards with the specific object of depriving the Oswal community, which is a business community in Ladnun, of their right to have a fair representation in the membership of the Board and that inspite of repeated protests there was no change in the wards and the elections in 1955 took place accordingly. When the life of the Board then constituted expired and fresh elections were to take place, some of the residents of the town including the petitioners again raised the question of revision and while the agitation was still in progress, the draft electoral rolls were published on 1st May, 1958, on the basis of the wards as they were, Ist of June, 1958, was fixed as the date for entertaining objections and 16th August, 1958, at the date of polling. On the 20th of June, 1958, however, the Secretary to the State Government wrote to the Collector of Nagaur that the question of formation of the wards for the said Board under sec. 10(d) of the Municipal Act should be finalised at an early date and the proposals sent up for Government approval ; and since this was likely to take some time, the ensuing Municipal General Elections should be postponed. On the 21st of July, 1958, Government directed an enquiry in the matter and stayed the election proceedings. Later, however, the Collector of Nagaur, on 18th August, 1958, wrote to the Government, observing that on the recommendation of the Returning Officer the proposals in regard to the wards and seats had been already approved by the Collector on 10th April, 1958, and that in his opinion there was no necessity felt on administrative grounds to change the constitution of the wards nor was there any resolution of the Municipal Board or any public organisation in this connection. It may be observed that the proposal of the Collector was in accordance with the wards previously fixed and approved by the Government under Notification No. F I (b) 14 LSG/54 dated 12th November, 1954. The above letter of the Collector had its desired effect. The Government realised that in case the wards had to be reconstituted the elections would be unduly delayed and it would take at least about six months to finalise. It was, therefore, of opinion that the proposal should be dropped and accordingly on the 30th of September, 1958, the Government wrote to the Collector of Nagaur that any idea of revising the list should be abandoned. In the meantime it appears that the Returning Officer had on the 28th of November, 1958, suggested certain changes in the wards ; but the Collector invited his attention to the aforesaid Government letter and advised him to proceed with the arrangements for the Municipal Elections on the basis of the existing wards and immediately to submit a revised programme for the same. Accordingly a fresh notice of the elections was published on the 22nd of January, 1959, and the elections took place as per schedule on the 25th of February, 1959. It appears that some of the petitioners themselves were candidates for the election but were un-successful. Accordingly a fresh notice of the elections was published on the 22nd of January, 1959, and the elections took place as per schedule on the 25th of February, 1959. It appears that some of the petitioners themselves were candidates for the election but were un-successful. The petition before us was presented on 9th March, 1959, after the result of the elections had been published. 3. An attempt was made at the outset to challenge the vires of sec. 10 of the Act on the ground that the section concedes excessive and arbitrary powers to the Government; but when it was pointed out that notice had not been served on the Advocate General, the learned counsel for the petitioners confined his arguments only to the executive action taken under the section in delimitation of the wards. The contention was that the delimitation was hit by Art 14 of the Constitution inasmuch as there had been an unreasonable discrimination in the matter of distribution and defining of the constituencies against a section of the community. Various affidavits have been filed in support of the allegations made in the petition, but in particular the affidavits of one Kanhaiyalal Sethi and one Atmaram, giving various details, were read out to us in extenso. The petitioners seek to make out that the delimitation of the wards in 1954 was wholly arbitrary and appears to make an unauthorised discrimination against the Oswal community who resided particularly in Wards No. 14 and 15. 4. Our attention has been drawn to a statement (Annexure 8A) prepared in 1954-55 regarding the Municipal Election of Ladnun. It mentions, amongst others, the 19 wards in the Municipality, the number of residential houses, the number of voters and the population in various wards respectively. The figures to which particular reference has been made in the course of the arguments are in relation to wards Nos. 7, 11, 14, and 15, In ward No. 7 it appears that the number of voters as mentioned in the statement is 585 whereas the population is 1170. In ward No. 11 it is 535 as compared to a population of 1070. Similarly in ward No. 14 it is 492 and the population is 985; and in ward No. 15 the number of voters is 525 whereas the population is 1050. In ward No. 11 it is 535 as compared to a population of 1070. Similarly in ward No. 14 it is 492 and the population is 985; and in ward No. 15 the number of voters is 525 whereas the population is 1050. It is argued that the very fact that the number of voters in each case has been taken to be almost half of the population shows that it was prepared on some speculative basis. It is contended that the number of voters in the above wards was much more than the figures given above and yet on the erroneous assumption each ward was given only one representation in the membership of the Board. These figures have been further compared with the statement Ex. A appended to the petition which contains the number of voters in the respective wards of the Ladnun Municipality, as shown in the electoral rolls prepared for the election to be held on 25th February, 1959. In this list we find that the number of voters in ward No. 7 was 765; in ward No. 11, 755, in ward No.14, 994, and in ward No. 15, 801. Mr. Tyagi for the petitioners contends that although the number of voters in these wards was fairly heavy as compared to the number of voters from the other wards, for instance ward No. 19 where it was as low as 487, yet each of these wards had the privilege of sending only one representative on the Municipal Board. It is submitted that in the case of those wards the number of voters is much larger or even double the number of others some additional representation may have been given or at least the wards should have been so distributed as to make the voters almost equal. Emphasis has also been laid on the report of the Returning Officer dated 28th November, 1958, where the Officer suggested that before any election is held for the constitution of the Municipal Board, there should be a redistribution of the wards and that each ward should be formed on the basis of at least 1000 population,; and since the population was a little above 25,000 he further suggested that there should be £5 wards in the Municipality out of which 23 should be elected and 2 nominated. Further the petitioners point out from the affidavit of Atma Ram that when the Board was constituted in 1954, there was some move on the part of the authorities to augment the proportion of the population and to secure for them an appreciable measure of over-representation. The affidavit further shows that in ward No. 14 out of the total of 994 voters, as many as 851 were Oswals and in ward No. 15 out of 802 voters, 636 were Oswals. 5. There can be no doubt that if the figures in Ex. A are correct, and we have no material to assume otherwise, then the wards Nos. 14 and 15 stand in a position of disadvantage as compared to some of the other wards in the matter of representation on the Municipal Board; but the question whether there has been any unreasonable discrimination against any particular community on that account is entirely a different matter. The distribution of the wards is generally determined on the basis of population and no one has suggested that tl|e figures of population in the various wards as given in Annexure 8 A to the petition were incorrect. These figures in the various wards are almost identical. The determination of the wards and the constituencies has to take place at the earliest stage, the preparation of the Electoral Roll comes much later. Therefore, the number of voters in a particular ward does not ordinarily come in the picture. This can be illustrated by an example. It may be that in a particular ward there may be a degree college, while in another ward there may be different primary and secondary schools located. Obviously the population in the latter would be much larger than the population in the former; yet the number of voters in the two wards may comparatively indicate the reverse position because of the larger number of adult and qualified population in the former. It is, therefore, manifest that the number of voters in a particular ward cannot be an appropriate index for determination of the wards themselves. Besides at the time of delimitation of the wards no adequate date in respect of the number of voters may be available. The number of voters in the Municipal area may be fluctuating depending upon various factors, like growth or increase of adult population or even its decrease, due to absence or otherwise. Besides at the time of delimitation of the wards no adequate date in respect of the number of voters may be available. The number of voters in the Municipal area may be fluctuating depending upon various factors, like growth or increase of adult population or even its decrease, due to absence or otherwise. The delimitation of the wards, therefore, must be made on a more stable basis than merely on fluctuating factors. Apart from population there are other topographical features and administrative details which have to be taken into account in the formation of the wards or constituencies, e. g., their geographical position, their compactness, the access to roads etc. These details, in our, opinion, in the very nature of things, are such that they cannot be justiciable. Courts of law cannot substitute their own discretion in these matters for the discretion of the local authorities to whom the Legislature in its wisdom has entrusted the task of defining the constituencies. There are both Indian and foreign decisions on the point and we may just as well refer to some of them at this stage. 6. In Sri P.M. Ratna Sabhapathi Rao Vs. The State of Madras(1) a question arose whether merely because the voters of different wards were not exactly equal, it could rot be presumed that there was lack of bona fides on the part of the Government. It was contended that the distribution of the wards was not in the interest of the public, inasmuch as the wards were not so divided as to ensure the return of members of minority communities to the Municipal Council and the number of voters in some wards was larger than those of other wards. It was contended that the distribution of the wards was not in the interest of the public, inasmuch as the wards were not so divided as to ensure the return of members of minority communities to the Municipal Council and the number of voters in some wards was larger than those of other wards. Chandra Reddi J., who dealt with the matter, observed that it was nowhere laid down that the wards in a Municipality were to be so divided as to make it easy for the members of a particular community to be returned to the Municipal Council; nor could it be premised that there was a violation of the principles of natural justice if the wards were not so manipulated as to ensure the success of the representatives of a particular community in the Municipal election; and that neither under the provision of the District Municipalities Act nor under the rules framed for the elections, was it incumbent on the authorities concerned to divide the wards in such a manner as would ensure the equality of voting strength of the wards. With great respect we are inclined to agree with the observations made by the learned Judge. In his judgment the learned Judge relied upon several decisions of the United States Supreme Court, one of them being the decision in Colegrove Vs. Green(2). In that case the suit was filed in the District Court of Illinois to have a division of Illinois State into congressional districts declared invalid by reason of inequalities in the population of the respective districts. The suit was dismissed by the District Court. While dismissing the appeal preferred against the dismissal of the suit, Frank further J., who delivered the judgment of the Court, remarked that it was in effect an appeal to the Federal Courts to reconstruct the electoral process of Illinois in order that it may adequately be represented in the councils of the nation, Frankfurther J. observed: — "Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests, From the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political, contest be dressed up in the abstract phrases of the law." 7. The above decisions indicate that questions relating to delimitation of constituencies are not justiciable, they being matters purely within the ambit of the executive power; and it was for the Government to arrange the distribution of wards, taking into consideration various factors, such as compactness of area, the population and the electoral strength etc. There was bound to be disparity between one ward and another in the matter of voting strength due to various other factors. The voting strength was not the sole criterion in these matters. In another decision in W.P. No. 568 of 1952 (Mad.) Subba Rao J., observed that in dividing the wards the Government had to take into consideration the administrative convenience, the factor of population, the housing accommodation, the size of the divisions, the geographical position of the streets and other similar factors. It followed, therefore, that the redistribution of wards was not a matter that could be brought up for a writ of certiorari before this Court. 8. Mr. Tyagi has relied upon certain observations made by this Court in Bhopalsingh Vs. State of Rajasthan (3), where the constitution of certain wards in the Panchayats was struck down on the ground that there was discrimination on the basis of caste between the Panchayats. There, as the learned Judges found, the discrimination was writ large in the manner which wards had been framed in the Panchayats. No one doubts the proposition, and in fact it is well settled, that Art. 14 of the Constitution can be used to strike down the law as well as the executive acts performed under the colour of law, if there is discrimination. Similarly, where on the very face, it appears that the constitution of a particular ward was clearly, discriminatory and made with a malafide intent to defeat the interest of certain members of a caste, this Court would not be slow to interfere. Cases of that kind should be clearly held to be mala fide. Similarly, where on the very face, it appears that the constitution of a particular ward was clearly, discriminatory and made with a malafide intent to defeat the interest of certain members of a caste, this Court would not be slow to interfere. Cases of that kind should be clearly held to be mala fide. The question, however, is whether in this case it can be assumed that in defining the wards there was any such mala fide intention on the part of the authorities concerned. Annexure 8 to the petition, which is dated 6.9.54 and to which reference has been already made earlier, contains the proposal about the fixation of boundaries of the 19 wards in Ladnun town as sanctioned by the Government in their letter dated 13.8.54. It is a letter addressed by the then Returning Officer to the Collector of Nagaur. The letter shows that in proposing the boundaries of the wards the officer kept in view the fact that the distribution of the population should be neither unbalanced nor the division inconvenient and unsystema-tical. The wards had been carved out with reference to the route of the main roadways which provided the physical boundary of the wards and a map was enclosed for the purpose of showing how the boundaries of the various wards had been delimited. In submitting the proposals it appears that the Returning Officer had consulted all the prominent representatives of different parties, the Municipal Board and other local persons, and he had also taken a round of the town with those persons and thereafter submitted the proposals for approval, which in his opinion were fit to be sanctioned. In view of this report of the Returning Officer we are unable to accept the version of Atmaram as given in his affidavit that in defining the limits of the wards the underlying purpose was to augment the representation of certain sections of the population and to secure for them an over-representation in the Municipal Board to the detriment of others. We have also had the advantage of looking into the map and it is obvious that the wards were fairly and scientifically delimited in accordance with the principles laid down by the Returning Officer in his report to the Collector and no such sinister motive as is alleged by Atmaram could be attributed to the Officer concerned. 9. We have also had the advantage of looking into the map and it is obvious that the wards were fairly and scientifically delimited in accordance with the principles laid down by the Returning Officer in his report to the Collector and no such sinister motive as is alleged by Atmaram could be attributed to the Officer concerned. 9. Even on the present occasion there is nothing to show that there was any lack of bona fides on the part of the officers who were conducting the elections, Annexure 8 to the petition, dated 4.4.58, is a letter from the Returning officer addressed to the District Magistrate. It suggests that the 19 wards in the Municipal area should be retained. It further shows that the latest voters list prepared and revised during the last Assembly elections was duly published in the Municipal office and Tehsil office. It also enclosed a further programme for perusal and approval of the Collector which after approval had to be published in the Government Gazette. On the 25th of June, 1958, as we have already shown, the Collector of Nagaur wrote to the Secretary to the Government that the above proposal had been approved by the Collector and that he did not see any necessity for revision of the wards or constitution of fresh wards. On the contrary he thought that it would not be in public interest to do so as the political atmosphere of the place was "reported to be rather muddy". The letter further shows that the Electoral Rolls had been prepared and published and the objections received by the Returning Officer had been decided by the Revising Committee in accordance with R. 10(5) of the Rajasthan Town Municipal Election Rules, 1951. The same view is expressed by the Collector in his letter dated 18th August, 1958. He felt that there was no necessity on administrative grounds to change the constitution of the wards; nor was there any resolution of the Municipal Board or any other public organisation in that connection. The above letters attribute nothing but fair play to the authorities con-cerned. He felt that there was no necessity on administrative grounds to change the constitution of the wards; nor was there any resolution of the Municipal Board or any other public organisation in that connection. The above letters attribute nothing but fair play to the authorities con-cerned. The mere fact that a handful of people agitate against the constitution of the wards on sectional grounds and desire to have the wards reconstituted to suit their sectarian interest does not imply that the conduct of the authorities in refusing to accede to their unreasonable request was in any way discriminatory or malafide. No blame can attach to the authorities merely because of the fact that the Oswal community formed the bulk of the population in wards Nos. 14 and 15. It is common knowledge in this country that for facility of social intercourse people of the same caste or community live either in the same Patti or in neighbouring Pattis. The authorities could not proceed to delimit the wards merely on caste or sectarian basis. Indeed it would have been quite wrong if they had done so. The contention, therefore, that there was any discrimination in the matter of delimiting the wards is without any valid foundation. 10. The other branch of Mr. Tyagis contention again stems from his interpretation of section 10 of the Municipal Act. He contends that it was essential for Government to notify that the elections were to proceed on the basis of the wards as constituted in 1954-55, i. e. prior to the elections in February, 1955. This was all the more necessary, according to the learned counsel, when on 21st of July, 1958 Government had directed an inquiry about the reconstitution of the wards and stayed the election proceedings. He submits that the local people were unaware of the subsequent letter of the Government dated 30th September, 1958 abandoning the idea of revising the formation of the wards. The argument, in our opinion, is founded on two erroneous assumptions. Firstly, that some particular form of notification under S. 10 is necessary; and secondly, that each time there is a general election for the constitution of the Municipal Board, such a notification must be issued. A careful reading of the section would repel both the assumptions. The argument, in our opinion, is founded on two erroneous assumptions. Firstly, that some particular form of notification under S. 10 is necessary; and secondly, that each time there is a general election for the constitution of the Municipal Board, such a notification must be issued. A careful reading of the section would repel both the assumptions. The section only empowers the Government to do the things mentioned in clauses (a) to (d) from time to time as the exigencies of the situation re-quired. It was not incumbent on the Government that every time fresh elections were to be held and the Board reconstituted, it should proceed to take all the steps referred to in sec. 10. If that were the intention, the opening words of the section would have clearly said so namely that "each time a Municipal Board is reconstituted the Government shall "do the things mentioned in the various clauses to the section." In the instant case the elections were held on the basis! of the wards as they existed and admittedly there were no changes in the wards. The notification dated 12.11.54 (Annexure 13 A) constituting the wards was issued not only for the purpose of the then existing election held in February, 1954; but, as the language of the notification shows, generally for all elections. The language is "Sadharan Municipal nirvachanon ke liye". Thus it would appear that unless there had been some changes in the wards no fresh notification, if at all, was needed for the purpose; and the residents of Ladnun should be deemed to have information of the factors mentioned in sec. 10 accordingly. There is, therefore, no substance in the complaint that there was non-compliance with the mandatory provisions of the section. 11. The only other point which remains to be examined is about the preparation of the final Electoral Roll which, according to the petitioners, was not in accordance with law. We know that the draft Electoral Roll was published on the 1st of May, 1958, and claims and objections were invited for consideration on 1st of June, 1958. They were to be heard by the Revising Committee as required by the Rules on the 7th of June, 1958. The case of the petitioners is that no Revising Committee was ever formed as required by the Rules. They were to be heard by the Revising Committee as required by the Rules on the 7th of June, 1958. The case of the petitioners is that no Revising Committee was ever formed as required by the Rules. There were 1015 claim petitions filed by individuals for inclusion of their names in the voters List but all those petitions were rejected by the Returning Officer on the ground that they did not conform to the prescribed Rules as contained in Sub-Rules (2) and (3) of Rule 9; nevertheless when the final Electoral Roll was published the names of all those claimants were included in the Electoral Roll. The petitioners contend that it is not known on what authority the names of these persons were included in the Electoral Roll without the objection being duly heard and decided by the Revising Committee as required by the Rules. Reliance is placed on Sub-Rule (3) of Rule 10, wherein it is provided that the claims and objections shall be heard and the orders thereon shall be pronounced in open sitting by a Revising Committee consisting of the Returning Officer and two members of the Board appointed by a resolution of the Board. The decision of the Revising Committee is subject to appeal under Sub-Rule (7) of Rule 10 to the District Magistrate. Reliance has also been placed upon the dictum of the Supreme Court in Chief Commissioner of Ajmer Vs. Radhey Shyam Dani (4), where it was observed that the validity of the elections could be challenged on the ground that proper Electoral Rolls were not maintained. In order that a proper Electoral Roll should be maintained it is necessary that after the preparation of the Electoral Roll an opportunity should be given to the parties concerned to scrutinise whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the Electoral Roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. All this is true but the Supreme Court decision referred to a case where no such Rules were at all framed and since provisions were omitted, the Rolls were held defective and could not form the basis of a valid election. That apart; on facts there appears to be some confusion in the case of the petitioners upon the point. All this is true but the Supreme Court decision referred to a case where no such Rules were at all framed and since provisions were omitted, the Rolls were held defective and could not form the basis of a valid election. That apart; on facts there appears to be some confusion in the case of the petitioners upon the point. It was originally asserted on their behalf that no Revising Committee was formed at all. The affidavit of Doongarmal which is an annexure to the petition gives a different story. He says that on 26.5.58 he and Chimanlal were appointed members of the Revising Committee on behalf of the Municipal Board to hear and decide claims and objections to the Electoral Roll and a meeting of the revising committee was summoned on 7.6.58; but when they met on that date the Returning Officer told them that he had already rejected the claims and objections as they did not comply with the Rules. Therefore, according to him, no meeting of the Committee was held. He further says that they lodged a protest with the Collector or the District Magistrate, who demi-officially advised the Returning Officer to allow the claims. From the letter of the Collector dated 25th June, 1958,(Annexure 12) it appears, however, that the objections received by the Returning Officer were decided by the Revising Committee in accordance with Rule 10(5) of the the Municipal Rules. Ordinarily in the exercise of our prerogative jurisdiction we would be reluctant to go into seriously disputed questions of fact but we see no reason to distrust the statement in the letter of the Collector which was sent to the Government in the due course of official business in relation to the steps taken in the elections. In any case under Rule 11(1) the Electoral Roll could be amended in accordance with the decision of the District Magistrate and under Sub-Rule(2) of the Rule the Returning Officer himself could within a month of the publication make additions to or corrections in the list. Therefore, it cannot be argued that the inclusion of the names of the claimants in the Electoral Roll was unauthorised. Therefore, it cannot be argued that the inclusion of the names of the claimants in the Electoral Roll was unauthorised. Taking the worst view of the case, the whole argument of the learned counsel on the point boils down to this that the names of certain persons were included in the list of voters about whom there was no decision by any Revising Committee whether they were competent to vote and yet such persons participated in voting at the election. It means, in other words, that certain unauthorised votes were cast at the polls. In that event it would be an appropriate subject-matter for consideration by an election tribunal whether the reception of these unauthorised votes materially affected the result of elections. It cannot entitle the petitioners to a writ from this court which would be almost in effect a writ of quo warranto declaring void the election of those who have been returned at the elections. 12. We are, therefore, unable to find any legitimate ground for interference in this case. The application is accordingly rejected with costs, hearing fee Rs. 100/-, and the rule nisi is discharged.