Research › Browse › Judgment

Madhya Pradesh High Court · body

1978 DIGILAW 820 (MP)

BAIJNATH CHHABIRAM v. GOVERNMENT OF M P

1978-10-27

H.G.MISHRA, K.K.DUBE

body1978
JUDGMENT : ( 1. ) THIS petition is directed against the determination of the number of seats reserved for Scheduled Castes in the Municipal Council, mehgaon, constituted under the provisions of M. P. Municipalities Act, 1961. The petition is at the instance of an elector and also seeks to challenge the election of Municipal Councillors held on 4-12-1974 on the ground that wrong determination of the number of seats reserved for Scheduled Castes in the council has resulted in a Constitution of the Council which was not according to law and thus vitiating the election as a whole. ( 2. ) BEFORE the last election, the Municipality of Mehgaon was divided into 5 wards for election of its 5 Councillors. There were no reserved seats for Scheduled Castes. Under section 29 of the Madhya Pradesh Municipalities act, the State Government is enjoined from time to time generally or specially in respect of each Municipality by notification to determine the number of elected and selected Councillors. After fixing the number of councillors, the Municipality is divided into wards with definite territorial limits. Then the number of Councillors to be elected from each ward is fixed. Under sub-clause (iii) of sub-section (b) of section 29 (1), it is required to fix the number of reserved seats for Scheduled Castes and Scheduled Tribes. The number to be fixed for the reserved seats is to be in the same proportion as provided in Articles 330 and 332 of the Constitution of India. It is then necessary to allot the wards for the Scheduled Castes or Scheduled Tribes. The Government, in exercise of the powers contained in section 29, determined the number of elected Councillors to be 10 and the number of selected councillors to be 2 in respect of the Mehgaon Municipality. Thereafter, the municipality was divided into 10 wards for election of 10 Councillors. Out of this, one seat was reserved for Scheduled Castes. This determination and fixation was notified in M. P. Rajpatra, dated 9-11-1973. An election on this basis was held on 4-12-1974 and the results were notified in Madhya Pradesh rajpatra, dated 17-1-1975. Thereafter, in a meeting of the elected Councillors held on 28-12-1974, 2 Councillors were selected. The respondent No. 7 was elected as President in a meeting held on 17-2-1975. An election on this basis was held on 4-12-1974 and the results were notified in Madhya Pradesh rajpatra, dated 17-1-1975. Thereafter, in a meeting of the elected Councillors held on 28-12-1974, 2 Councillors were selected. The respondent No. 7 was elected as President in a meeting held on 17-2-1975. After the entire elections and selections have been done, this petition has been filed on 19-2-1975 as already stated challenging the election on the ground that the reservation of seats for the Scheduled Castes has not been done in accordance with section 29 of the Act. We would, therefore, proceed to consider the contention. ( 3. ) THE population of Mehgaon consists of 5284 persons out of which 711 are persons of Scheduled Castes. The population of the Scheduled Castes is thus 13. 46 per cent of the total population. The above figures are not disputed. The petitioner contends that the Government has determined that the Municipality shall consist of 12 Councillors; 10 would be elected and 2 would be selected. Under clause (iii) of sub-section (b) of section 29 (1)of the Act, it is contended that the number of seats to be reserved for Scheduled Castes must bear the same proportion with the number of seats in the council as the population of the Scheduled Castes bears with the general population of the Municipality. The reservation for Scheduled Castes seats, it is contended, must be with reference to 12 seats and not 10 seats. If the proportion of the reservation is calculated with reference to 12 seats, the proportion would work out to 1. 72 for the Scheduled Castes and then two seats would be reserved for Scheduled Castes. This raises a question whether for fixing the number of reserved seats, the number of seats in the Council should be taken to be 10 which are elected seats or the total twelve seats which include two selected Councillors. ( 4. ) IT would be necessary to refer to the language in Articles 330 and 332 of the Constitution which read as under :- "330 (1) Seats shall be reserved in the House of the People for- (a) the Scheduled Castes; (b) the Scheduled Tribes (except the Scheduled Tribes in the tribal areas of Assam); and (c) the Scheduled Tribes in the autonomous district of Assam. 2. 2. The number of seats reserved in any State (or Union territory) for the Sheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State (or Union territory) in the House of the People as the population of the Scheduled Castes in the Scheduled Tribes in the State (or Union territory) or part of the State (or Union territory) as the case may be, in respect of which seats are so reserved, bears to the total population of the State (or Union territory ). 332. (1) Seats shall be reserved for the Scheduled Castes and the scheduled Tribes, (except the Scheduled Tribes in the tribal areas of assam and in Nagaland) in the Legislative Assembly of every State. (2) Seats shall be reserved also for the Scheduled Castes or the scheduled Tribes in the Legislative Assembly of any State under clause (1)shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the state or of the State, as the case may be, in respect of which seats are so reserved, bears to the population of the State. (4 ). . . . . . . . . . . . . . . . . . . (5 ). . . . . . . (6 ). . . . . . . . . . . . . . . . . . . . " It would appear from the language of the two Articles that the number of seats reserved in the Council must be as nearly as may be in the same proportion as the population of the Scheduled Castes bears to the total population in the Municipality. ( 5. ) SHRI A. B. Mishra, learned counsel for the petitioner, strongly relies on the proviso to section 29 (1) of the Act for saying that the total number of councillors was envisaged, as the representation in Council must bear the same proportion as the population of Scheduled Castes would bear to the population in the Municipality. ( 5. ) SHRI A. B. Mishra, learned counsel for the petitioner, strongly relies on the proviso to section 29 (1) of the Act for saying that the total number of councillors was envisaged, as the representation in Council must bear the same proportion as the population of Scheduled Castes would bear to the population in the Municipality. The proviso to section 29 (1) reads as under: - "provided that if in any Municipality the President is elected from amongst the persons who are not councillors, the total number of councillors determined shall, in respect of such Municipality, be deemed to have been increased by one so long as such person continues to be president thereof. " The proviso merely states that in case the President is elected from amongst the persons who are not councillors, the total number of councillors determined shall be deemed to have been increased by one so long as such person continues to be the President of such Municipal Committee. We fail to see how the proviso supports the contention of Shri A. B. Mishra. The scheme of section 29 is that after fixing the number of councillors to be elected and selected, the Municipality is divided into wards and the number of councillors to be elected from each ward is fixed. Now, the reservation of seats for scheduled Castes has to be done at this stage. It cannot be foreseen that the president would not be one who is not a councillor and, therefore, the number of councillors would be deemed to be increased by one. In fact, the proviso would indicate that the deeming provision contained in the proviso is only for the purpose of treating the President as a councillor when he is not amongst the persons who are actually councillors either elected or selected. Such a number, therefore, cannot be taken into consideration for the purpose of computing the reservation of seats for Scheduled Castes. ( 6. ) IT would be seen that the Government is not only required to fix the number of seats reserved for Scheduled Castes but also to indicate the wards from which they would contest the election and it is enjoined by rules that the allocation of wards for the Scheduled Castes would, as far as practicable, be from the wards where the population of Scheduled Castes is most concentrated. It is clear from the scheme that the reservation of seats for scheduled Castes would be for the elected seats only. If it is for elected seats, the proportion should be calculated with reference to number of seats which are to be filled in by election. ( 7. ) THERE is another aspect of the matter. It is apparent from articles 330 and 332 of the Constitution that the number of seats reserved for the Scheduled Castes in the Municipal Council must bear the same proportion as the Scheduled Castes population in the Municipal area bears with the general population of the Municipality. This may be so as nearly as may be. Now, if the reservation is calculated with reference to the total number of seats, i. e. the elected and selected, it would result in a reservation which would be theoritically greater than the one contemplated by the Constitution for, if reservation had been done on the basis of the total number, the weightage of the Scheduled Castes would be greater while selecting the two councillors. This does not seem to be the intention either of the Act or the constitution. The reservation of the Scheduled Castes be, therefore, to be on the basis of only the seats from which the councillors are to be elected. The contention of Shri A. B. Mishra that the reservation must be computed on the basis of the total number of councillors, that is, elected and selected, would lead to anomalous result and, therefore, has to be rejected. ( 8. ) FOR the reasons stated above, we dismiss the petition with costs. Counsels fee Rs. 100, if certified. The balance of security amount, if any, shall be refunded to the petitioner. Petition dismissed.