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2000 DIGILAW 395 (KER)

Viswanath v. State of Kerala

2000-07-28

R.RAJENDRA BABU

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JUDGMENT R. Rajendra Babu, J. 1. Petitioner filed this O.P. for quashing Exts.PI and P3 as violative of Art.14 of the Constitution of India and also for directing the respondents to fix the number of wards required to be reserved for members of the SC/ST in accordance with law and also for declaring S.69(1) of the Kerala Municipality Act, 1994 as unconstitutional. 2. The allegations in the petition briefly are as follows: The petitioner is a voter of Ward No. XXV of the Tripunithura municipality. He is aggrieved by the decision of declaring ward XXV of Thripunithura Municipality as a reserved constituency of the scheduled caste eventhough out of the 1,384 voters there were only 4 members belonging to the SC/ST category in the above ward. There are 32 wards in the Tripunithura municipality and 13 wards were excluded as constituencies reserved for women and SC/ST and only 19 wards were included in the draw of lots for selecting the SC/ST constituencies. In fact the authority should have included 28 wards for selecting SC/ST constituencies as only 4 constituencies had to be excluded which were reserved during the previous election. Instead of that, the authorities included only 19 wards and consequently the principle of rotation enshrined in Art.243 T of the Constitution had been violated. Without complying with the above provision, the reserved constituencies had been selected by lot and accordingly Ext. PI illegal order had been published. There were only 4 numbers of scheduled caste voters in ward No. XXV and as such the respondents had no authority to reserve a ward virtually with no SC/ST voters. The principle of rotation enunciated in Art.243 (T) of the Constitution was not a mandatory stipulation, but it was an option to be adopted by the respondents after examining the demographic compensation of the concerned wards. The respondents have committed an error in fixing the wards on the basis of the old census report when the latest census report was available with the authorities and they should have delimited the wards on the basis of the latest report instead of following the old one. 3. The respondents have committed an error in fixing the wards on the basis of the old census report when the latest census report was available with the authorities and they should have delimited the wards on the basis of the latest report instead of following the old one. 3. The second respondent filed a statement contending that the reservation of wards had been selected by lot complying with all the legal formalities and on the basis of guidelines issued by the Election Commission which was to be followed through out the State there was no violation of any law or Rules and as such Exts.Pl and P3 are not liable to be quashed. 4. Heard the learned counsel for the petitioner and the Standing Counsel for the third respondent. The main argument advanced by the learned counsel for the petitioner was that the procedure adopted by the Election Commission in fixing the SC/ST Constituencies was violative of Art.243 I of the Constitution of India and as such Exts. PI and P3 are liable to be quashed. The learned standing counsel for the Election Commission argued that S.69 of the Kerala Municipalities Act was amended as per Amendment Act 14 of 1999 and thereby the Election Commission was authorised to perform the duties to be followed under S.69. It was further argued that S.6 of the Kerala Municipalities Act was also amended as per the above Amendment Act 14 of 1999 and the Government had to fix the number of constituencies considering the density of the population and accordingly the Government had notified G.O.(MS)239/99/LSGD dated 10.12.1999 and published the total number of seats and also the seats to be reserved in the Tripunithura Municipality. According to the above notification, the total number of seats were declared as 32 and 9 seats were reserved for women, 2 seats for SC/ST candidates, and 2 seats for SC/ST women. The Election Commission had authorised the Municipal Administrative Joint Director, Kochi to conduct the lot for selection of the reserved constituencies in Tripunithura municipality and also issued the guidelines to be followed for deciding the reserved wards as per Order No.3890/B/2000/SCC dated 4.5.200. It was argued that the above officer elected the reserved constituencies by conducting the lot and issued Ext. P1 order on 19.5.2000 declaring the reserved constituencies. 5. It was argued that the above officer elected the reserved constituencies by conducting the lot and issued Ext. P1 order on 19.5.2000 declaring the reserved constituencies. 5. Art.243 (T) of the Constitution provides that the seats reserved for SC/ST, SC/ST women and the Women general have to be alloted by rotation. As per the guidelines issued by the Election Commission dated 4.5.2000 the existing number of reserved constituencies has to be excluded while deciding the wards for the next general election. Accordingly, the existing reserved constituencies namely the SC/ST constituencies as well as the women constituencies had been excluded from the lot and the remaining constituencies were included in the lot for selection to the SC/ST as well as the women constituencies. 243-T Reservation seats-(l) Seats shall be reserved for the Schedule Castes and the Scheduled Tribes in every Municipality and number of seats so reserved shall bear, as nearly as may be, the same proportion 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 that 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. 6. A consideration of the above provisions would make it clear that the principles of rotation should be followed in all the above three clauses, when case a constituency had been reserved either under Art.243 T (i) or (ii) or (iii) the same should not be made a reserved constituency in any of those categories during the next election. Hence the reserved constituencies in all the categories had to be excluded from the lot and the same procedure had been adopted by the officer authorised by the Election Commission. 7. Hence the reserved constituencies in all the categories had to be excluded from the lot and the same procedure had been adopted by the officer authorised by the Election Commission. 7. An argument was advanced by the learned counsel for the petitioner that as there was no SC/ST member in Ward No.XXV, it should not have been included in the lot and that the respondents had no authority to reserve a ward where virtually there was no SC/ST voter and to reserve such a ward as a SC/ ST reserved ward. Art.243 T stipulates that there should be proper representation of SC/ST members considering the SC/ST population of the Municipality as a whole. Art.243 T does not stipulate that the population of the SC/ST voters in a particular constituency should be the criteria for selecting the SC/ST reserved constituency. Even when the SC/ST population was low or nil, the same can be a SC/ST reserved constituency as the constitution stipulates only the representation on the basis of the entire SC/ST population of the municipality. There is no bar for a SC/ST member elected from a ward where the percentage of SC/ST population was low or nil and no such prohibition is there under Art.243 T. The reservation of the constituencies are made not on the basis of percentage of the SC/ST population in the constituency but it is on the basis of the rotation of the constituencies as provided in Art.243 T of the constitution. There may be certain constituencies where the population of SC/ST voters be low or nil even then that constituency can be represented by a member of the SC/ST. Hence the above argument cannot be accepted. 8. Another argument advanced by the learned counsel for the petitioner was that the procedure adopted by the Election Commission for selecting the reservation ward by lot was improper, unscientific and unreasonable and it was for the authority concerned to decide which should be the reservation ward. The statement filed by the Election Commission would clearly reveal that such a procedure was adopted for avoiding political corruption and also for ensuring transparency and fairness in the selection of wards, so that there should not be any allegations of favouritism shown to any particular section or to any particular political party and that was the procedure adopted and followed through out . the State. the State. Hence, I do not find any merit in the above argument and I do not intend to interfere with the above procedure adopted by the Election Commission in selecting the reservation wards by lot. 9. Even though it was alleged that S.69(1) of the Kerala Municipality Act was liable to be declared unconstitutional, it was not explained how and why S.69 had to be struck down. S.69 had been amended by Act 14 of 1999 and the Election Commission was authorised to do the delimitation process under S.69. Hence, the reliefs prayed for in the O.P. cannot be granted and it has only to be dismissed. Hence this O.P. shall stand dismissed.