JUDGMENT - GOKHALE H.L., J.:---Heard Mr. Parchure, Mr. Lambat, Mr. Deshmukh, learned Counsel for the respective petitioners; Mr. Gavai, learned Government Pleader for the respective respondents; Mr. Charade, and Mr. Abhay Sambre, learned Counsel for respective Municipal Councils. 2. These three writ petitions are concerning the elections to the office of the President of the three respective Municipal Councils, viz. Umrer Municipal Council, Pulgaon Municipal Council and Wani Municipal Council, which elections are governed under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter, for the sake of brevity, referred to as the said Act). As far as the Umrer Municipal Council is concerned, the election is already held. The election to the Pulgaon Municipal Council is to be held on 9th of December, and as far as Wani Municipal Council is concerned. Notification for the proposed election is not issued as yet. 3. The petitioner in the first writ petition concerned with Umrer Municipal Council is a candidate, who would like to contest for the post of president of the Municipal Council from the open category. The petitioner in the second writ petition, which relates to Pulgaon Municipal Council is one of the candidates and the petitioner in the third writ petition concerning with Wani Municipal Council has approached this Court as a citizen. 4. In all three writ petitions, common points are raised, and they are principally with respect to reservation of the seat of President for specified communities. Hence, all the petitions are heard together. 5. The first submission of Mr. Parchure, learned Counsel, was as follows:- (i) Under the procedure as it is existing, a roaster has been provided in a particular manner, i.e. as per the notification dated 6th of July, 1995 the reservations are drawn for a period of 10 years. The said roaster is as follows:-- ---------------------------------------------------------------------------------------------------- Serial No. Year Category ---------------------------------------------------------------------------------------------------- 1. First Scheduled Tribes Women 2. Second General for Women 3. Third Backward Class of Citizens Women 4. Fourth General 5. Fifth Scheduled Tribes 6. Sixth Backward Class of Citizens 7. Seventh Scheduled Tribes 8. Eighth General 9. Ninth Backward Class of Citizen 10. Tenth General ---------------------------------------------------------------------------------------------------- (ii) It is submitted by Mr. Parchure, that the present election is the fourth one to Umrer Municipal Council under the Roster and, therefore, the seat has to go to open category. Fifth Scheduled Tribes 6. Sixth Backward Class of Citizens 7. Seventh Scheduled Tribes 8. Eighth General 9. Ninth Backward Class of Citizen 10. Tenth General ---------------------------------------------------------------------------------------------------- (ii) It is submitted by Mr. Parchure, that the present election is the fourth one to Umrer Municipal Council under the Roster and, therefore, the seat has to go to open category. He relies upon the provision of Clause 14 of the ordinance dated 7th September, 2001, seeking to amend the various Acts with respects to elections, including the said Act. Clause 14 thereof proposes to add sub-section (3) in section 51-1-A of the Municipal Councils Act, to the following effect:--- "(3) Notwithstanding anything contained in the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Ordinance, 2001, or in the Maharashtra Municipal Councils, Nagar Panchayats (President Election) Rules, 1981, the roaster relating to the reservation of the office of the President in the Municipal Councils, shall after the date of coming into force of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Ordinance, 2001, continue to apply as if the term of office of the President specified therein was for a period of five years." (iii) Mr. Parchure, learned Counsel thereafter submits that although, a new system/procedure (i.e. direct election) is now proposed for the election to the post of President, under this ordinance of 7th of September, 2001, the roster, as existing earlier, was to continue. It may be stated that under this ordinance, proposing to amend various Acts, the office of the president was to be filled in by direct election from the voters, as against the earlier method of president being elected by the Councillors. (iv) There is a subsequent notification issued by the Urban Development Department, dated 22nd October, 2001, concerning these elections to amend these elections rules. Clause 2 of this notification provides that the post of president will now be reserved in the manner, provided thereunder, viz. (iv) There is a subsequent notification issued by the Urban Development Department, dated 22nd October, 2001, concerning these elections to amend these elections rules. Clause 2 of this notification provides that the post of president will now be reserved in the manner, provided thereunder, viz. that the number of offices to be reserved for the candidates belonging to Scheduled Castes and Scheduled Tribe and Scheduled Tribes, shall bear, as nearly as may be the same proportion to the total number of offices to be filled in the State, as the population of the Scheduled Castes or Scheduled Tribes, as the case may be, in the Municipal Councils and Nagar Panchayats of the State bears to the total population in the Municipal Councils and Nagar Panchayats of the State. Said Rule 2-A(i), which is sought to be inserted by the above referred Clause 2-A(a)(i), reads as follows:--- "2-A(a) The State Government shall by order, published in the Official Gazette, reserve the office of the President of Municipal Councils, or, as the case may be, of Nagar Panchayats in the State for candidates belonging to the Scheduled Castes, Scheduled Tribes, backward class of citizens and women. While determining the number of offices to be so reserved. (i) the number of offices to be reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes shall bear, as nearly as may be, the same proportion to the total number of offices to be filled in the State, as the population of the Scheduled Castes or Scheduled Tribes, as the case may be, in the Municipal Councils and Nagar Panchayats of the State bears to the total population in the Municipal Councils and Nagar Panchayats of the State and such offices may be allotted by rotation to different Municipal Councils and Nagar Panchayats in the State." (v) The grievance of Mr. Parchure, learned Counsel, is that in view of this clause, now, the seat will not go to the general category, but it is proposed to be reserved for Scheduled Tribe candidate. Mr. Parchure, further submits that this clause is in conflict with the amendment, which is sought to be introduced by Clause 14 of Ordinance dated 7th of September, 2001, by amending section 51-1-A referred to above. 6. The second submission of Mr. Mr. Parchure, further submits that this clause is in conflict with the amendment, which is sought to be introduced by Clause 14 of Ordinance dated 7th of September, 2001, by amending section 51-1-A referred to above. 6. The second submission of Mr. Parchure, learned Counsel is that halba Koshtis are no longer to be considered as Scheduled Tribe, as recently decided by the Apex Court, and if their population is excluded, then, the population of the Scheduled Tribes in the city of Umrer will go down from 21% to just about 2%-3%. 7. The third submission of Mr. Parchure, was that, whereas the seats which are to be allotted to the Scheduled Castes and Scheduled Tribes communities are as per their percentage in the population, the seats to O.B.C. are being allotted in accordance with the lots to be drawn and not in accordance with the percentage in population. 8. Mr. Gavai, learned Government Pleader, appearing for the respondent/State submitted that as far as the first submission, viz. that there was a conflict between Clause 14 of the Ordinance dated 7th of September, 2001 and the provision under the Rule of the Rule of Notification dated 22-10-2001, is concerned, the provision under Clause 14 of the Ordinance dated 7th of September, 2001 no longer survives. This is because by a subsequent Ordinance dated 20th October, 2001, the above referred Clause 14 from the proposed Ordinance has been deleted. Mr. Gavai, learned Government Pleader, therefore, submits that the reservations for the office of the president will no longer be as per the earlier arrangement, which were to be continued under the ordinance dated 7th of September, 2001. In this submission, since the policy decision has been taken in the particular manner, now it is only the new provision under the Rules, which will prevail. 9. As far as the submission with respect to Halba Koshtis is concerned, Mr. Gavai, learned Government Pleader, submitted that the respondents are very much disputing that the percentage of Scheduled Tribes in Umrer city will go down in the manner in which it is sought to be canvassed, and affidavit in reply has also been filed to that effect. 10. On the third submission of Mr. Parchure, viz. that the allotment to the O.B.C. is not on the basis of their percentage in population. Mr. 10. On the third submission of Mr. Parchure, viz. that the allotment to the O.B.C. is not on the basis of their percentage in population. Mr. Gavai, learned Government Pleader, submitted that for that purpose there is no specific provision as such, under the Constitutional Scheme. He placed reliance on the provisions of Article 243-T of the Constitution of India, which reads as under: "243-T. 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 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. (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 seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens." The learned Government Pleader however, submitted that yet the percentage of O.B.C. population is considered. (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 backward class of citizens." The learned Government Pleader however, submitted that yet the percentage of O.B.C. population is considered. Those communities are having uniform percentage in the population in different town area and, therefore, on that footing, the seats are to be filled by drawing lots. 11. Mr. Parchure, learned Counsel for the petitioner has relied upon a judgment of a Division Bench of this Court in the case of (Sarla Sopan Bopale v. State of Maharashtra and others)1, reported in 2001(2) Bom.C.R. (N.B.)730, and particularly, para No. 8 thereof, wherein the proposition laid down by the Apex Court in the case of (Election Commission of India through Secretary v. Ashok Kumar and others)2, reported in 2000(6) SCALE 182 , have been quoted. The reliance was to submit that the petition, as far as Umrer Municipal Council is concerned, has been filed well in time, and that it would subserve the progress of the election on appropriate line. As far as this submission of Mr. Parchure, is concerned, we do not think that it advances the case of petitioner any further. In our view, the ordinance issued by the State Government later on i.e. on 20th October, 2001, takes away much of the force of his submission. Since the proposed Clause 14, as aforesaid, is itself deleted, now we have a position whereunder, the earlier arrangement of reservations no longer survives and the legislature (and the Governor, when the legislature is not in session) is competent to change his decision in this behalf. Therefore, now it is only the new rules, which would survive. The statement of object of the Ordinance dated 20th October, 2001, state that the change is proposed to be on lines of arrangement in the State of Andhra Pradesh and Madhya Pradesh. As stated earlier, it s for the Legislature (Governor, when the legislature is not in session) to take necessary decision and the decision having been incorporated in the Ordinance, well before the elections, it cannot be said that the earlier arrangement ought to be continued. 12. As far as the submission with respect to Halba Koshtis and O.B.C. percentage in population is concerned, in our view, the defence taken by Mr. 12. As far as the submission with respect to Halba Koshtis and O.B.C. percentage in population is concerned, in our view, the defence taken by Mr. Gavai, learned Government Pleader is justified. There is some dispute on facts also and it cannot be gone into in a writ petition. That being the position, there is no cause to entertain this petition. Mr. Gavai, learned Government Pleader has drawn our attention to the fact that similar petition being Writ Petition No. 5799/2001 (Vishnu v. Bhaindar Municipal Council)3, has been recently dismissed by a Division Bench of this Court, presided over by Hon'ble the Chief Justice B.P. Singh and Justice D.Y. Chandrachud, at Bombay. 13. For the reasons stated hereinabove the writ petitions stand dismissed. Writ Petitions dismissed. -----