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2013 DIGILAW 753 (GUJ)

Amisha Chirag Shah v. State of Gujarat

2013-12-21

BHASKAR BHATTACHARYA, J.B.PARDIWALA

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Judgment Bhaskar Bhattacharya, CJ.—By this Misc. Civil Application, the petitioner has prayed for review of our order dated 6th September 2013 passed in Special Civil Application No. 8177 of 2013 and for passing a direction upon the respondents No. 1 to 4 to notify the election for the post of President, Godhra Municipality latest by 18th October 2013 and to conclude the entire process by 15th November 2013 on the basis of 2001 census figure in partial modification of our aforesaid order. 2. By the above Special Civil Application, a female councilor of Godhra Municipality had prayed for a declaration that the provisions of the Gujarat Municipalities [Reservation of SC, ST, BC, Women for the office of the President] 2nd Amendment Rules 2013 [the amended Rules, hereafter] is ultra vires, unconstitutional and violative of Articles 14, 15, 19 and 243T of the Constitution of India and Section 33 read with section 277 of the Gujarat Municipalities Act, 1963 [the Act, hereafter]. 3. The case made out by the petitioner may be summed up thus: [a]. The petitioner is an elected councilor of the Respondent No. 3 – Godhra Municipality and was so elected from Ward No. 10 in the election held in the year 2010. The petitioner was elected on a reserved seat for women and the petitioner’s name appears in the voters’ list of ward No. 10. The term of the petitioner as a councilor will expire in the year 2015. [b]. Under the provisions of the Act, the election of the President and the Vice President is held from amongst the elected councillors and their term is for 2 years and six months. [c]. In exercise of powers conferred under Section 33 read with Section 277 of the Act, the State Government has framed rules known as the Gujarat Municipalities [Reservation of SC, ST, BC, Women for the office of the President] Rules, 1994 [the Rules hereafter]. Under these Rules, the office of the President is reserved in favour of SC, ST, BC & women candidates as per the roster shown in the schedule to the Rules. Some amendments have been made in the year 1995 in the aforesaid Rules. [d]. The reservation for women is made in furtherance of the constitutional mandate contained in Article 243.T and the avowed policy of the Government. Some amendments have been made in the year 1995 in the aforesaid Rules. [d]. The reservation for women is made in furtherance of the constitutional mandate contained in Article 243.T and the avowed policy of the Government. The duration of the roster as per the provisions of the Rules is up to 10 points. In Godhra Municipality, the 10 points roster was implemented as per the aforesaid Rules and accordingly the immediate erstwhile President, Rajesh Chauhan, was elected from the Scheduled Caste category. According to the petitioner, once the 10 point roster in the chronology of reservation mentioned in the schedule is implemented, the roster will restart unless very drastic changes take place in the facts and circumstances. Accordingly, the next President has to be elected from women councillors only. [e]. The 2010 election in the Municipality was based on the figures appearing in the census and other data available at the relevant time. Since councillors are elected for 5 years on the basis of the aforesaid data, there cannot be any change as regards the applicability of the roster during one single term. Therefore, even if it is assumed that the respondent No.1 has the legislative competence to amend or enact new reservation rules and to adopt a new roster, such rule cannot be made applicable in respect of the elections held on the basis of the census and other data available in the year 2010. [f]. On 28th March 2013, the respondent No. 1 issued a draft notification with the same roster-schedule where under the next election of the President for Godhra Municipality will have to be made from amongst women only. However, instead of passing the proposed amendment, a final notification dated 26th April 2013 was issued in total violation of the proposed amendment. By the impugned amendment, the State has issued a one point roster only, and thus, instead of reservation for women candidate for the imminent election for the post of President, the seat is allotted to the general category candidate. [g]. By a letter dated 10th April 2013, the respondent No. 3 has already intimated to the District Election Officer for appointment of Returning Officer on the basis of the proposed amendment where the office of the President for this terms is required to be filled in from amongst the women councillors. [g]. By a letter dated 10th April 2013, the respondent No. 3 has already intimated to the District Election Officer for appointment of Returning Officer on the basis of the proposed amendment where the office of the President for this terms is required to be filled in from amongst the women councillors. However, the amended Rules and the Schedule thereto provide for filling the vacancy of the post of President from general category candidates. 4. This Bench, by order dated 6th September 2013 held that the Gujarat Municipalities [Reservation of SC, ST, BC, Women for the office of the President] 2nd Amendment Rules, 2013 is ultra vires the Constitution so far as it relates to Godhra, and is liable to be set aside. We also directed the State Government to take immediate steps for the election of the President by reserving it for women category in terms of its earlier roster unless in the meantime, the 2011 census figures was published, and in that event, the State was directed to prepare a new roster in accordance with the last published census, viz. Census, 2011. 5. In arriving at the above conclusion, we took into consideration Section 2(20) of the Gujarat Municipalities Act, 1963 [the Act, hereafter] according to which “Population” in relation to the municipal borough means the population as ascertained in the last preceding census of which the relevant figures have been published. According to us, the amended schedule challenged in the writapplication was not based on the last published census and no material was placed before the Court to indicate what is the reason which prompted the State to deviate from the earlier roster based on last preceding census inasmuch as we were given to understand that 2011 census figure had not been published. 6. By this application for review, the petitioner has prayed that our observations that “unless in the meantime, the 2011 census figures is published, and in that event, the State will prepare a new roster in accordance with the last published census, viz. Census, 2011” should be deleted because the election should be held on the basis of roster existing at the time when the vacancy occurred. 7. Census, 2011” should be deleted because the election should be held on the basis of roster existing at the time when the vacancy occurred. 7. After entertaining this application, we added the Union of India, Ministry of Home Affairs/Gruh Mantralaya, Directorate of Census Operations, Gujarat Census Bhavan, Gandhinagar as additional party- respondent for the purpose of ascertaining whether the 2011 census figures have been officially published. Pursuant to such addition, Mr. Saiyed, learned Assistant Solicitor General of India, submitted, after taking instructions, that the provisional data of census of 2011 for the State of Gujarat had been published on 4th April 2013 and the full data were published on 18th June 2013 and such data were released through press conference and also through website. 8. After the aforesaid material was placed before us, we find that the full data of the 2011 census were published on 18th June 2013, i.e. even before we delivered the judgment in the main Special Civil Application on 6th September 2013 and by virtue of the principle adopted by us, the new election should be held in accordance with the 2011 census. 9. Mr. Pandya, the learned counsel appearing on behalf of the petitioner, however, strenuously contended before us that there are two mistakes in our original order dated 6th September 2013. First, we held that the earlier roster was based on 2001 census but such finding was wrong inasmuch as the rule was framed in 1994 which was based on the 1991 census. Secondly, it was submitted that the councillors having been elected on the basis of 1991 census, the vacancy in question which occurred in the month of May 2013 should also be filled up in accordance with the old schedule. 10. It appears from the records that although the reservation policy should be adopted on the basis of the last census published, in the State of Gujarat, the election has been held by following the reservation based on the 1991 census, even after publication of the 2001 census. We, however, do not know whether by virtue of the census of 2001, the pattern of reservation fixed by 1994 rules based on 1991 census figures would change or not. 11. We, however, do not know whether by virtue of the census of 2001, the pattern of reservation fixed by 1994 rules based on 1991 census figures would change or not. 11. Be that as it may, we repeat and reiterate that reservation in an election should be fixed by virtue of the figures of the last published census and in the case before us, the full data of 2011 census having been published in the month of June 2013, all future elections should be held on the basis of reservation based on the figures of the census of 2011 which is the last published census. We do not find any substance in the contention of Mr. Pandya, the learned advocate for the petitioner that as the general election in the case before us was held in the year 2010, the post of the President should also be reserved on the basis of the earlier census and not on the basis of the last published census. We have already pointed out that the last published census is the 2011 census and the earlier one was of 2001 on the basis of which no reservation has been fixed in the State of Gujarat. In our opinion, the moment the 2011 census has been published, it is the duty of the State-respondent to fix new criteria for reservation based on the last census and any election held after publication of the 2011 should be guided on the policy of reservation based on 2011 census as provided by law. 12. We, therefore, find that there is no valid ground for reviewing our ultimate conclusion although there is a mistake in our order that the earlier reservation was based on 2001 census which is not correct inasmuch as in the State of Gujarat, the reservation based on 1994 rule is being followed which is in terms of the 1991 census. The aforesaid mistake, however, will not affect our final decision. At any rate, the reservation for the post of president fallen vacant cannot be determined on the basis of the census figures of 1991 when the figures of the last published census of 2011 are available. 13. We, therefore, do not find any reason to modify our order. The aforesaid mistake, however, will not affect our final decision. At any rate, the reservation for the post of president fallen vacant cannot be determined on the basis of the census figures of 1991 when the figures of the last published census of 2011 are available. 13. We, therefore, do not find any reason to modify our order. The State respondent is directed to fill up the post of the President, Godhra Municipality, by adopting the policy of reservation based on 2011 census which is the last published census in terms of Section 2(20) of the Gujarat Municipalities Act. 14. The application is disposed of accordingly. No costs.