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2000 DIGILAW 1356 (ALL)

RAJIV GUPTA v. STATE OF UTTAR PRADESH

2000-10-24

G.P.MATHUR, SHYAMAL KUMAR SEN

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G. P. MATHUR, J. ( 1 ) THE dispute in the present writ petition relates to reservation of seat for the office of adhyaksha (President), of Nagar Panchayat, Dataganj, district Budaun. In the election held in the year 1995, the seat was reserved for a candidate belonging to Backward Class. A notification was issued by the State Government on September 30, 2000, providing that the seat for the office of Nagar Panchayat, Dataganj is reserved for Backward Class. The petitioner seeks quashing of the said notification. He has also prayed that a writ of mandamus be issued commanding the respondents to declare the seat for the aforesaid office as unreserved and open for candidates of general category. ( 2 ) SRI Ramendra Asthana, learned counsel for the petitioner has contended that in view of Article 243t of the Constitution and Section 9a of U. P. Municipalities Act, 1916 (hereinafter referred to as the Act), there should be a rotation in the matter of reservation of seats and as the office of president of Nagar Panchayat. Dataganj had been reserved for a candidate of Backward Class in the last election held in the year 1995, the said office should not be reserved for a candidate belonging to Backward Class again in the forthcoming election likely to be held in November, 2000 and it should have been left open for a candidate belonging to general category. Sri Ashok mehta, learned chief standing counsel and Sri Sabhajeet Yadav, learned standing counsel, who have appeared for respondents 1 to 3, have submitted that the provision regarding rotation of seats has no application for the office of the President of Nagar Panchayat and, therefore, no illegality has been committed in reserving the office of President. Nagar Panchayat. Dataganj, for a candidate belonging to Backward Class again and the petitioner has no legal right to claim that the said office should be left unreserved for a candidate belonging to general category. ( 3 ) IN order to examine the contention raised by the learned counsel for the parties, it Is necessary to notice the relevant provisions of the Constitution and the Act. Part IXA of the Constitution relates to Municipalities and Article 243t in the said Part deals with reservation of seats, which reads as under : "243t. ( 3 ) IN order to examine the contention raised by the learned counsel for the parties, it Is necessary to notice the relevant provisions of the Constitution and the Act. Part IXA of the Constitution relates to Municipalities and Article 243t in the said Part deals with reservation of seats, which reads as under : "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 Chair-persons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manners 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 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 seals in any Municipality or offices of Chairpersons in the Municipalities in favour of Backward Class of citizens. " ( 4 ) SECTION 9a of the U. P. Municipalities Act which has been inserted in the parent Act by U. P. Act No. 12 of 1994 w. e. f. 30. 5. 1994, reads as under : "9a. " ( 4 ) SECTION 9a of the U. P. Municipalities Act which has been inserted in the parent Act by U. P. Act No. 12 of 1994 w. e. f. 30. 5. 1994, reads as under : "9a. Reservation of seats.-- (1) In every municipality seats shall be reserved for the Scheduled castes, and the Scheduled Tribes 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 wards in a municipality in such order as may be prescribed by rules. (2) In every municipality, twenty-seven per cent of seats to be filled by direct election shall be reserved for the Backward Classes and such seats may be allotted by rotation to different wards in a municipality in such order as may be prescribed by rules. (3) Not less than one-third of the total number of seats reserved under sub-sections (1) and (2)shall be reserved for women belong to the Scheduled Castes, the Scheduled Tribes or the backward Classes, as the case may be. (4) Not less than one-third of the total number of seats in a municipality (including the number of seats reserved under sub-section (3)) shall be reserved for women and such seats may be allotted by rotation to different wards in a municipality in such order as may be prescribed by rules. (5) The offices of Presidents in the Municipalities in the State shall be reserved for the Scheduled castes, the Scheduled Tribes, the Backward Classes and women in such manner, as may be prescribed by rules. (6) The reservation of seats and offices of the Presidents for the Scheduled Castes and the scheduled Tribes under this Section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution. Explanation.-- It is clarified that nothing in this section shall prevent the persons belonging to the scheduled Castes. Scheduled Tribes, the Backward Classes and the women from contesting election to unreserved seats and offices. Explanation.-- It is clarified that nothing in this section shall prevent the persons belonging to the scheduled Castes. Scheduled Tribes, the Backward Classes and the women from contesting election to unreserved seats and offices. " ( 5 ) CLAUSE (1) of Article 243t of the Constitution lays down that the seats shall be reserved for scheduled Castes and Scheduled Tribes and clause (3) of the same Article lays down that not less than one-third of total number of seats to be filled by direct election in every Municipality shall be reserved for women. Clauses (1) and (3) further provide that such seats may be allotted by rotation to different constituencies in a Municipality. In view of the aforesaid provisions different wards in a Municipality for the purpose of reservation of seats have to be allotted in favour of Scheduled Castes. Scheduled Tribes and women. So far as the office of Adhyaksha or president is concerned the provision is made in clause (4) of the said Article which lays down that the offices of Chairpersons in the Municipalities shall be reserved for Scheduled Castes, scheduled Tribes and women in such manner as the Legislature of the State may, by law, provide. The expression "and such seats may be allotted by rotation to different constituencies in a Municipality" occurring in clauses (1) and (3) is conspicuous by its absence in clause (4 ). In fact clause (4) does not at all refer to rotation in the matter of reservation of office of chairperson. There is a clear distinction in the language used in clauses (1) and (3) on the one hand and clause (4) on the other hand. The reservation of the office of the Chairperson of municipal Board has to be done by law made by the Legislature of the State. Therefore, the constitutional provisions do not at all provide for any rotation in the matter of reservation of the office of Chairperson or President of the Municipal Board. ( 6 ) THE provisions of U. P, Municipalities Act also lead to the same inference. Sub-sections (1), (2) and (3) of Section 9a lay down that in every Municipality, seats shall be reserved for scheduled Castes, Backward Classes and women. These sub-sections further provide that such seats, which have been reserved, may be allotted by rotation to different wards in a Municipality. Sub-sections (1), (2) and (3) of Section 9a lay down that in every Municipality, seats shall be reserved for scheduled Castes, Backward Classes and women. These sub-sections further provide that such seats, which have been reserved, may be allotted by rotation to different wards in a Municipality. The manner of rotation of reservation of seats is to be prescribed by Rules in view of sub-section (1) of Section 9a of the Act. Provision for reservation for the office of the President is made in sub-section (5) of the same section and it lays down that the office of President of the municipality in the State shall be reserved for Scheduled Castes, Backward Classes and women in such manner as may be prescribed by Rules. Here again the expression "and such seats may be allotted to different wards in a municipality" which is used in sub-sections (1), (2) and (4), is conspicuous by its absence. Sub-section (5) merely lays down that the office of the President shall be reserved for Scheduled Castes, Backward Classes and women, but does not say that such reservation of office may be allotted by rotation to different municipalities. Therefore, there is no provision which may require rotation while reserving the office of the President of the Municipal board. The contention of the learned counsel for the petitioner that the office of the President of municipal Board, Dataganj, having been reserved for a candidate of Backward Class in 1995, it should not have been reserved for the same class in the forthcoming election to be held in november, 2000 or that there should have been rotation in the matter of reservation has, therefore, no substance. ( 7 ) SRI Asthana next contended that the order issued by the State Government again reserving the office of the President of Nagar Panchayat, Dataganj, for a candidate belonging to Backward class violates the guarantee enshrined under Article 243 of the Constitution inasmuch as the person belonging to general category is permanently deprived of the right to contest for the said office as the same is continuing to be reserved for a person belonging to Backward Class. He further urged that a resident of Municipal Board can contest the election for the office of the president of his own Municipality and not of a different one and any order, which permanently reserves the office in favour of a reserved category, seriously infringes with the right of a person belonging to general category and is thus wholly arbitrary. Clause (4) of Article 243t of the constitution lays down that 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. Similar provision is contained in sub-section (5) of Section 9a of the Act that such reservation shall be done in the manner prescribed by Rules. The reservation for office of the President in the Municipal Board is not done by an executive order but by law made by the Legislature of the State. Clause (2) of Article 243za lays down that subject to the provisions of the 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. In view of clause (a) of Article 243zg of the Constitution the validity of any law relating to the delimitation of constituencies made or purporting to be made under Article 243za cannot be called in question in any Court. In view of the constitutional bar, the contention raised by the learned counsel cannot be entertained. ( 8 ) IN view of the discussion made above, we find no merit in the writ petition, which is hereby dismissed summarily at the admission stage. .