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Himachal Pradesh High Court · body

1986 DIGILAW 56 (HP)

RAM KUMAR v. STATE OF HIMACHAL PRADESH

1986-11-04

P.D.DESAI, R.S.THAKUR

body1986
JUDGMENT P. D. Desai, C. J. -The following four submissions were made for the consideration of the Court at the preliminary hearing of the petition : (1) The notification dated July 30, 1986, Annexure P. C. issued in the purported exercise of the powers conferred by sections 10 and 11 of the Himachal Pradesh Municipal Act, 1968 (herein after to be referred as "the Act"), whereby the number of elected members for the Municipal Committee, Nahan, was raised from 13 to 15, is ultra vires, inasmuch as : (a) the power relating to the increase of the number of members of any Municipal Committee is exercisable under section 13 of the Act and (b) such power is exercisable for any reason which may be deemed to affect the public interest or at the request of the majority of the electors and the said condition precedent for the exercise of power is not shown to have been satisfied in the instant case. (2) The reservation of three out of fifteen seats of elected members in favour of the Scheduled Castes vide the notification dated July 30, 1986, Annexure P. C, is ultra vires, since there is no provision in the Act authorising the State Government to provide for such reservation. (3) The appointment of the Revising Authority for the purpose of hearing claims and objections relating to the electoral rolls vide notification dated March 5, 1986, Annexure R-P was not in conformity with Rule 10 of the Himachal Pradesh Municipal Election Rules, ;970 (hereinafter referred to as "the Rules") and it was illegal and unauthorised AND (4) The co-option of Suit. Hamida Banu (respondent No. 18} on the Municipal Committee, Nahan, was illegal and authorised, since the strength of the Municipal Committee thereby exceeded the sanctioned number fixed vide notification dated July 30, 1986, Annexure P.C. We shall deal with these submission seriatim. Re : Submission No. 1. 2. The submission is not required to be dealt with since on such point has been raised in the petition and the concerned respondents have there fore, had no opportunity to meet the contention. Re: Submission No. 2. 3. True it is that there appears to be no specific provision in the Act authorising the State Government to make reservation of seats in favour of the Scheduled Castes. Re: Submission No. 2. 3. True it is that there appears to be no specific provision in the Act authorising the State Government to make reservation of seats in favour of the Scheduled Castes. However the power to establish and constitute for each Municipality a Municipal Committee consisting of such number of members as the State Government may fix in that behalf and the further power of the State Government to prescribe the number of elected members and to increase or reduce the number of seats on any Committee (vide sections 10, 11, and 13) read with the power conferred by section 255 of the Act to make rules consistent with the Act to carry out the purposes thereof and, more particularly, to divide the Municipalities into wards or the inhabitants into classes, or both, and to fix the number of representatives proper for each ward or class, must be construed as taking within its sweep the power to provide for reservation of seats for the Scheduled Castes. The establishment of the units of Local Self Government, such as Municipalities and Panchayats, is for the purposes of the decentralisation of administrative powers and functions and of providing to the people an opportunity to as socite themselves with the administration at the grass root levels through their elected representatives. In order that the weaker section of the society such as the Scheduled Castes and Schedule Tribes secure adequate representation on the Municipal Committee, which is a unit of the self-government, the State can legitimately provide for the reservation of seats for such sections or segments of the people on the Committee. Such reservation is a measure intended or directed towards carrying out the purposes of the Act and it is competent to the State Government to provide for the same while exercising statutory powers hereinabove mentioned read with Rule 4 of the Himachal Pradesh Municipalities (Wards) Rules, 1970. It would be pertinent to mention in this connection that the Constitution of India has enacted in Part XVI specific previsions for such classes and that Articles 330 and 332 provide for the reservation of seats for the Scheduled Castes and Tribes in the Parliament and she State- Legislatures respectively. The reservation of three seats for the Scheduled Castes in the Municipal Committee, Nahan, is, therefore, not ultra vir the Act. R": Submission No. 3. 4. The reservation of three seats for the Scheduled Castes in the Municipal Committee, Nahan, is, therefore, not ultra vir the Act. R": Submission No. 3. 4. Rule 10 of the Himachal Pradesh Municipal Election Rules, 1970 reads as follows : “Appointment of Revising Authority. The Deputy Commissioner may appoint any Magistrate of the first or second class to be a Revising Authority for the purpose of hearing claims and objections relating to roil, and may specify the constituency or constituencies for which he shall be the Revising Authority." In exercise of the powers conferred as aforesaid, the second respondent (Deputy Commissioner, District Sirmur) issued an order dated March 25, 1^86, Annexure-RF appointing certain Executive Magistrates as the Revising authorities for receiving and hearing the claims and objections relating to the electoral rolls of the constituencies (Wards) of the Nahan Municipal Committee shown against the name of each of such Executive Magistrates. The submission of the petitioners as we understand it to be, is that the second respondent should have appointed Judicial Magistrates of the First or Second Class to be the Revising Authorities. The submission deserves summary rejection on the ground that after the separation of the Executive from the Judiciary, the Judicial Magistrates cannot be required to perform such functions, not at least by an Executive Officer, unless expressly authorised by a legislative enactment, and that too with the express concurrence of the High Court, which exercises control over the courts subordinate to it under Article 235 of the Constitution. In light of the separation of the Executive from the Judiciary, the expression "any Magistrate of the first or second class" in Rule 1 has to be read and interpreted as "any Executive Magistrate". Not to read Rule 10 accordingly may expose it to the vice of being unconstitutional. Re : Submission No. 4, 5 The submission has been stated merely to be rejected. Section 11 of the Act provides for the constitution of a Committee for each Municipality consisting of: (a) elected members, (b) co-opted members and (c) associate members The law thus makes a clear distinction between different categories of members constituting the Committee of each Municipality. Under section 11 the number of elected members of the Committee is to be prescribed by the State Government. Section 13, inter alia, empowers the State Government to increase or reduce the number of seats on any Committee. Under section 11 the number of elected members of the Committee is to be prescribed by the State Government. Section 13, inter alia, empowers the State Government to increase or reduce the number of seats on any Committee. The notification dated July 30, 1986, Annexure P. C. has fixed the number of elected members of the Municipal Committee, Nahan, at 15. The said notification, therefore, governs the strength of elected members only. It has no bearing on the co-option of members, who fail in a different category, or on their strength, or on the total strength of the Municipal Committee. Section 11-A of the Act deals with co-option from amongst women and provides that if no woman has been elected to a Committee, the elected members of the Committee shall co-opt, in accordance with the provisions of section 11-B, one woman, who is otherwise qualified to be elected as a member of such Committee, where the total number of the members of the Committee does not exceed ten, and where the total number of members of the Committee exceeds ten, two such women shall be co-opted as members of the Committee, and if one woman has been elected, the elected members shall co-opt one such woman. Section 11 -B prescribes the manner of co-option. Reading all the provisions together, there is no manner of doubt that a co-opted member stands in a class apart from the elected members and that he is not comprised in the category of elected members prescribed for each Municipal Committee. In other words, a co-opted member will be in addition to or in excess of the elected members of the Municipal Committee. 6. For the foregoing reasons, there being no substance in the writ petition, it is summarily rejected. Petition dismissed.