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2004 DIGILAW 771 (PAT)

Renuka Palit v. State Of Bihar

2004-08-02

NAGENDRA RAI, S.N.HUSSAIN

body2004
Judgment 1. The petitioners, who are the Woman Ward Councillors of the Gaya Municipal Corporation and Scheduled Caste woman voters of different Wards falling within the said Corporation, have filed the present writ application for declaration that the election of respondent no. 5 Smt. Asha Devi as a Mayor of the said Corporation is illegal, inoperative and void as her election was conducted on the basis of a notification dated 8.8.2002 (Annexure 8 to the writ application), which itself was ultra vires the Constitution. 2. The facts leading to the filing of the present writ application are that the Gaya Municipal Corporation (hereinafter referred to as the Corporation) was established in 1983 and prior to that it was a Municipality. Part IX-A dealing with the Municipalities was inserted in the Constitution by the Constitution (7th Amendment) Act, 1992, which came into force with effect from 1.6.1993. It contains a provision with regard to the constitution of the Municipalities, holding of election, reservation of seats for the Ward Counciliors as well as the Chairpersons of the Municipalities and other connected matters. In 2001, the Patna Municipal Corporation Territorial Constituencies (Wards) Constitution Rules, 2001 and the Bihar Municipalities Territorial Constituencies (Wards) Constitution Rules, 2001 were passed and, thereafter, the State Election Commission (respondent no. 4) initiated action for the constitution of the territorial constituencies of all the five Municipal Corporations of the State and issued guidelines on 30.10.2001 to all the concerned District Magistrate-cum-District Election Officer (Nagar Nigam). After constitution of the territorial constituencies (wards), reservation was also done in terms of the constitutional provisions. However, the said guidelines clearly mention that no provision has been made for reservation for the post of Chairperson (Mayor) in the Patna Municipal Corporation Act governing the Corporation. 3. After constitution of the Wards and preparation of electoral roll, a notification was issued fixing 28.4.2002 as the date of the poll and the counting was to commence on 3.5.2002: Elections of all the five Corporations were held as per the schedule except for some wards for the Patna and Gaya Municipal Corporations. After necessary corrections, elections of those Wards were also held. Thereafter, the election results of the Ward Councillors were declared and steps were taken to hold the election of Mayor/Dy. Mayor for the Corporation in question. The Secretary, Department of Urban Development (Respondent no. After necessary corrections, elections of those Wards were also held. Thereafter, the election results of the Ward Councillors were declared and steps were taken to hold the election of Mayor/Dy. Mayor for the Corporation in question. The Secretary, Department of Urban Development (Respondent no. 2) requested the State Election Commission to conduct the election to the post of Chairperson (Mayor) and Vice Chairpersons of Urban local bodies, but later on asked respondent no. 4 not to conduct the election to the said posts without reserving the post of Chairperson (Mayor) as that would be contrary to the constitutional mandate enshrined in Article 243T (Part-IX-A) of the Constitution. The Secretary also informed that the Government is considering to amend the relevant provisions of section 8 of the Patna Municipal Corporation Act and, thereafter, the State Government, by notification dated 7.8.2002, amended the Patna Municipal Corporation Act, whereby the provision for reservation of the office of Mayor was made by inserting section 19A of the said Act. Thereafter, the State Election Commission (respondent no. 4) took steps for reservation of the office of Mayors in the Municipal Corporation and out of the five offices of Mayors in the Municipal Corporations, one was to be reserved for the Scheduled Caste as per the provision of section 19A(i) and as such the same has to be reserved for Scheduled Caste Women as per section 19A (iii) of the said Act. 4. The procedure for reservation of office of Mayor for Scheduled Caste Women was laid down in paragraph 6 of the letter dated 8.8.2002, which has been challenged by the petitioners by annexing as Annexure 8. In terms of the provision of the Act, the office of Mayor of Gaya Municipal Corporation was reserved for Scheduled Caste Women, as Gaya Municipal Corporation has the highest percentage of Scheduled Castes population. As in terms of the constitutional provision and amended provision of the Act, two offices of Mayor were to be reserved for women as per section 19(ii) and out of which one was to be reserved for Scheduled Caste Women from Scheduled Caste category, other office of Mayor of Bhagalpur Municipal Corporation was reserved for women and the office of Mayor of Gaya Municipal Corporation, as stated above, was reserved for scheduled Caste Women. 5. There is no dispute about the said factual aspects between the parties. 5. There is no dispute about the said factual aspects between the parties. However, according to the learned counsel for the petitioners, as the election process had already started by notification dated 31.12.2001, the Ward Councillors were elected on 27.5.2002 and the date for election of Mayor was notified for 29.6.2002 prior to the notification dated 8.8.2002 making reservation, hence act of reservation amounted to interference in the process of election. He also submitted that this action of the respondent is mala fide and arbitrary. 6. Learned counsel appearing for the Respondent-Election Commission, on the other hand, combated both the submissions and submitted that as the Constitution provides for reservation of seats in the offices of Chairpersons (Mayors) in the Municipalities for the Scheduled Castes and the Scheduled Tribes Women, non- reservation of the seat of Chairperson (Mayor) would have violated the constitutional mandate and, accordingly, amendments were made in the Act by inserting section 19-A providing for reservation in terms of the constitutional mandate and as such there was no question of doing anything new during the process of election. He further submitted that Patna Municipal Corporation Act was amended on 7.8.2002 providing reservation and that amendment has not been challenged and only the notification issued by the Election Commission in the light of the aforesaid amendment has been challenged. Unless the notification amending the Act is not challenged, the challenge to the subsequent notification issued by the Election Commission will not result in modification of the said amendment. 7. The law is well-settled that while holding election for the democratic bodies, all steps should be taken to complete the election process smoothly and nothing is to be done to obstruct or protract the election. It is equally well-settled that once the Constitution contains a provision with regard to the constitution of the bodies and provision of reservation, then the Legislature, while enacting the law, cannot act contrary to the constitutional provisions. It is equally well-settled that once the Constitution contains a provision with regard to the constitution of the bodies and provision of reservation, then the Legislature, while enacting the law, cannot act contrary to the constitutional provisions. Admittedly, the provision with regard to the Municipalities has been inserted in the Constitution by the Constitution (7th Amendment) Act, 1992, which came into effect from 1.6.1993 and the Legislature while making reservation for the Ward Councillors of the Municipalities did not make any provision for reservation in respect of Mayor in terms of the provisions contained in Article 243T(4) of the Constitution, according to which 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. The State Legislature, when came to know about the aforesaid infirmities, immediately took steps while election for the Mayor had not been held and provided for reservation therefor in terms of the constitutional provision. By the said amendment, neither election process was obstructed nor protracted, on the other hand, the said amendment fulfils the mandate of the Constitution and as such the submission advanced on behalf of the petitioner that the said provision should not have been added while the process of election was going on, is devoid of any substance. 8. The main hurdle in the way of the petitioners is that they have challenged the notification dated 8.8.2002 (Annexure 8), by which the Election Commission has issued instructions and guidelines with regard to the reservation for the post of Mayor in the Municipality and has selected the Gaya Municipal Corporation as reserved category for Scheduled Castes Women in terms of the constitutional mandate and the amended provision of the Act, but they have not challenged the notification dated 7.8.2002 making amendment in the Act providing reservation in terms of the constitutional provision. Unless the amendment itself is challenged, challenge to the notification issued in pursuance of the same will not in anyway affect the provisions of the Act. Thus, the submission advanced on behalf of the respondent-Election Commission in this regard is worth acceptance. 9. In the result, we find no merit in this writ application and it is, accordingly, dismissed.