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Rajasthan High Court · body

1994 DIGILAW 874 (RAJ)

Santosh Kumar Gupta v. State of Rajasthan

1994-11-09

ANSHUMAN SINGH, R.S.VERMA

body1994
Honble SINGH, J. - By this writ petition filed under Article 226 of the Constitution of India petitioner-Santosh Kumar Gupta inter-alia challenges the validity of sub-rule (2) of Rule 5 of the Rajasthan Municipalities (Election) Rules, 1994 as amended upto date and seeks a direction that the respondents be restrained from proceeding with the delimitation of Wards and allotment of seals in accordance with the- aforesaid sub-rule (2) of Rule 5. (2). On behalf of the respondents a preliminary objection has been raised that the writ petition is not maintainable by virtue of provisions of Article 243 (ZG) of the Constitution of India. (3). We have heard the learned counsel for the parties. (4). Article 243 (ZG) of the Constitution of India reads as follows: — "243 ZG. Bar to interference by courts in electoral matters. - Notwithstanding anything in the Constitution. (a) the validity of any law relating to the delimitation of constituencies or the allotment of beats to such constituencies, made or purporting to be made 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 matters as is provided for by or under any law made by the Legislature of a State." (5). The learned counsel for the petitioner tried to meet the preliminary objection by citing Azizulla Khan & 12 Ors. vs. State & Ors. (1). We have gone through the said judgment and we find that it has no applicability to the facts of the present case. In that case, a view was taken that bar contained in Article 329 of the Constitution of India did not apply to pre-election matters. We may stale that at the time this case was decided, there existed no provision similar to the present Article 243 ZG which is clear, categorical and explicit and covers pre-election matters referred to in this Article. Reliance was also placed on Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner (2), but this precedent too has no applicability to the present case. (6). Article 243 (T) deals with the reservation of seats. Reliance was also placed on Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner (2), but this precedent too has no applicability to the present case. (6). Article 243 (T) deals with the reservation of seats. The relevant provision of Article 243 (T) reads as under: — "243 T. Reservation of seats,-(l) 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." Clause (6) of this Article reads as under: — "(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 the backward class of citizens." (7). The thrust of the contention of the learned counsel for the petitioner was that the reservation of constituencies in favour of SC/ST has to be made on the basis of the population, but in the relevant Rule 6 it has been given a go bye so far as the backward classes are concerned and the relevant Rule doesnt provide procedure for reservation of seats for backward classes at -all. It is submitted that instead, the reservation in favour of the backward classes has been provided by draw of lots and thus the equality clauses of the Constitution have been violated. Likewise, it is submitted that the reservation in favour of women has also to be made by draw of lots, which is impermissible. It is also urged that the provision for reservation of seats on the basis of draw of lots, is arbitrary. (8). After having given our anxious consideration to all the aspect of the matter, we find that Article 243 T of the Constitution of India by enacting clause (1) provided mode for reservation so far as the SC/ST candidates are concerned. (8). After having given our anxious consideration to all the aspect of the matter, we find that Article 243 T of the Constitution of India by enacting clause (1) provided mode for reservation so far as the SC/ST candidates are concerned. However, this mode was not sought to be adopted so far as backward classes were concerned and clause (6) was inserted in Article 243 T namely: Nothing in this part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality in favour of the backward classes of citizens. Thus, this class was treated on a different footing altogether. (9). The reservation for women was provided in clauses (2) & (3) of the Article 243 T which reads as under:- "(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 scats may be allotted by rotation to different constituencies in a Municipality." (10). Here also the mode adopted in clause (1) of the Article was not made applicable. Thus, we find that the Parliament in its wisdom chose to make a distinction with regard to the reservation of seats for SC/ST candidates on the one hand and women candidates or candidates from backward classes on the other hand. This departure appears to be deliberate. (11). It is an admitted position that a Backward Class Commission is functioning in the State and is engaged in identifying the backward classes and this process is not yet complete. The process is a continual one. In these circumstances, if the Legislature or the Rule making authority deems it proper to provide reservation on the basis of draw of lots, it cannot be said that the provision is violative of the equality clauses of that Article or is arbitrary in any manner. (12). In the aforesaid premises, we find no merit in this writ petition and the same is dismissed in limine. Parties are left to bear their own costs.