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2018 DIGILAW 291 (UTT)

Sanjay Pal v. State of Uttarakhand

2018-05-25

SUDHANSHU DHULIA

body2018
JUDGMENT : Sudhanshu Dhulia, J. Petitioner before this Court is a resident of Roorkee, District Haridwar. He is aggrieved by the notification dated 11.05.2018, by which reservation for Mayor in the existing Municipal Corporations, which are situated in the State of Uttarakhand, has been proposed. Admittedly, there are eight Municipal Corporations in the State of Utttarakhand, which are as under:- 1. Nagar Nigam, Dehradun 2. Nagar Nigam, Rishikesh 3. Nagar Nigam, Haridwar 4. Nagar Nigam, Kotdwar 5. Nagar Nigam, Haldwani 6. Nagar Nigam, Kashipur 7. Nagar Nigam, Rudrapur 8. Nagar Nigam, Roorkee 2. However, the reservation for the Mayor has been proposed regarding only 7 Municipal Corporations and there is no mention of Municipal Corporation, Roorkee. Petitioner has relied upon Section 7 of the Uttar Pradesh Municipal Corporations Act, 1959 which reads as under:- “Section 7. Reservation of seats. – (1) In every Corporation, seats shall be reserved for the Scheduled Castes, the Scheduled Tribes and the backward classes and the number of seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats to be filled by direct election in the Corporation, as the population of the Scheduled Castes in the municipal area or of the Scheduled Tribes in the municipal area or the backward classes in the municipal area bears to the total population of such area and such seats may be allotted by rotation to different wards in a Corporation in such order as may be prescribed by rules: Provided that the reservation for the backward classes shall not exceed twenty-seven per cent of the total number of seats in a Corporation: Provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the manner prescribed by rules. (2)[***] (3) Not less than one-third of the seats reserved under sub-section (1) shall be reserved for the women belonging 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 to be filled by direct election in a Corporation, 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 the Corporation in such order as may be prescribed by rules. (4) Not less than one-third of the total number of seats to be filled by direct election in a Corporation, 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 the Corporation in such order as may be prescribed by rules. (5) The offices of Mayor and [***] of the Corporation shall be reserved for the Scheduled Castes, the Scheduled Tribes and the Backward classes and women in the manner given below:- (1) Reservation and allotment of offices of mayor. – (a) The reservation and allotment of offices of the Mayor shall be done in the manner hereinafter provided. (5) The offices of Mayor and [***] of the Corporation shall be reserved for the Scheduled Castes, the Scheduled Tribes and the Backward classes and women in the manner given below:- (1) Reservation and allotment of offices of mayor. – (a) The reservation and allotment of offices of the Mayor shall be done in the manner hereinafter provided. (b) The number of offices to be reserved – (i) for the Scheduled Castes or for the Scheduled Tribes or for the backward classes shall be determined in the manner that it shall bear, as nearly as may be, the same proportion to the total number of offices in the State as the population of the Scheduled Castes in the urban area of the State, or of the Scheduled Tribes in the urban area of the State, or of the backward classes in the urban area of the State bears to the total population of such area in the State and if in determining such number of offices there comes a remainder then, if it is half or then half of the devisor, it shall be ignored and if it is more than half of the devisor, the quotient shall be increased by one and the number so arrived at shall be the number of offices to be reserved for the Scheduled Castes or the Scheduled Tribes or the backward classes, as the case may be: Provided that the number of offices to be reserved for the backward classes under this clause shall not be more than twenty-seven per cent of the total number of offices in the State; (ii) for the women belonging to the Scheduled Castes, the Scheduled Tribes and the backward classes, as the case may be, under sub-section (3) shall not be less than one-third of the number of offices for the Scheduled Castes, Scheduled Tribes and for the backward classes and if in determining such number of offices there comes a remainder then the quotient shall be increased by one and the number so arrived at shall, as case may be, be the number of offices to be reserved for women belonging to the Scheduled Castes, Scheduled Tribes and backward classes. (c) All Municipal Corporations of the State shall be arranged in such serial order that the Municipal Corporations having largest percentage of population of Scheduled Castes in the State, shall be placed at Serial Number 1 and Municipal Corporations having lesser population of the Scheduled Castes than those shall be placed at Serial Number 2 and the rest shall likewise be placed respectively at succeeding numbers and likewise the remaining shall be numbered respectively. (d) Subject to item (ii) of sub-clause (b) the number of offices of the Mayor determined under sub-clause (b) for Municipal Corporations in the State, as the case may be, in the manner that, - (i) the number of offices determined under item (i) of sub-clause (b) for the offices of Scheduled Castes including the number of offices determined under item (ii) of the said sub-clause for the women belonging to the Scheduled Castes, shall be allotted to Scheduled Castes serial wise next to the Municipal Corporations placed at Serial No. 1 onwards under sub-clause (c): Provided that such Municipal Corporations shall be first allotted to the women belong to the Scheduled Castes; (ii) the number of offices determined under item (ii) of sub-clause (b) for the offices of Scheduled Tribes including the number of offices determined under item (ii) of the said sub-clause for the women belonging to the Scheduled Tribes, shall be allotted to Scheduled Tribes serial wise next to the last serial allotted under item (i): Provided that such Municipal Corporation shall be first allotted to the women belonging to the Scheduled Tribes; (iii) the number of offices determined under item (i) of sub-clause (b), for the offices of backward classes including the number of offices determined under item (ii) of the said sub-clause for the women belonging to the backward classes shall be allotted to backward classes serial wise next to the last serial number allotted under item (ii): Provided that such Municipal Corporation shall be first allotted to the women belonging to the backward classes; (iv) the number of offices determined under item (ii) of sub-section (b) excluding the offices determined under the said sub-clause for the women of Scheduled Castes, Scheduled Tribes and backward classes shall be allotted to the women serial wise next to the last serial number allotted under item (iii). (e) If on the basis of the population of the Scheduled Castes or Scheduled Tribes in a Municipal Corporation – (i) only one office could be reserved for the Scheduled Castes or Scheduled Tribes, as the case may be, such office shall be allotted to the women; (ii) no office could be reserved for the Scheduled Castes or for the Scheduled Tribes, the order of allotment of offices referred in sub-clause (d) shall be so adhered to as if there is no reference in it to the Scheduled Castes or to the Scheduled Tribes, as the case may be. (f) The offices allotted in any previous election to the Scheduled Castes, the Scheduled Tribes, the backward classes or the women shall not be allotted in the subsequent election respectively to the Scheduled Castes, the Scheduled Tribes, the backward classes or the women and the offices in such subsequent election shall be allotted serially from the next to the last office allotted to the women in the previous election in the order referred to in sub-clause (d) in cyclic order. (2) [***] Provided that the number of offices to be reserved for the backward classes under this clause shall not be more than twenty-seven percent of the total number of unreserved offices of Mayor in the State: Provided also that the number of offices to be reserved for the women shall not be less than one-third of the total number of unreserved offices of Mayor and if in determining such number of offices, there comes a remainder then the quotient shall be increased by one and the number so arrived at shall be the number of offices to be reserved for women: Provided also that the offices allotted to any election in any election to the women shall not be allotted to the women in the next following election and shall be allotted to the next Municipal Corporation, as the case may be: Provided also that if the office of the Mayor of a Municipal Corporation is reserved, the office of [***] of that Municipal Corporation shall not be reserved. (3) Allotment Order. – (a) Notwithstanding anything contained in the foregoing sub-sections the State Government shall, after determining the number of offices to be reserved for the Scheduled Castes, Scheduled Tribes, backward classes and the women, by order published in the Gazette, allot the offices to the Municipal Corporations. (3) Allotment Order. – (a) Notwithstanding anything contained in the foregoing sub-sections the State Government shall, after determining the number of offices to be reserved for the Scheduled Castes, Scheduled Tribes, backward classes and the women, by order published in the Gazette, allot the offices to the Municipal Corporations. (b) The draft of order under sub-clause (a) shall be published for objections for a period of not less than seven days. (c) The State Government shall consider the objections, if any, but it shall not be necessary to hear in person on such objections unless the State Government considers it necessary so to do and thereupon it shall become final. (d) The draft of order referred to in sub-clause (b) shall be published in at least one daily newspaper having wide circulation in the concerned district and shall also be affixed on the notice board of the offices of the District Magistrate and the concerned Municipal Corporation. (6) The reservation of the seats and the offices under this section for the Scheduled Castes and the Scheduled Tribes shall cease to have effect on the expiry 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, the Scheduled Tribes, the backward classes and the women from contesting elections to unreserved seats and offices.” 3. A bare perusal of the aforesaid provision shows that while considering the reservation quota for Scheduled Caste, Scheduled Tribe and Other Backward Class as well as for women in all the categories, the population of each category in the concerned Municipal Corporation has to be considered. Therefore, by not taking into consideration Municipal Corporation, Roorkee while fixing the reservation there is a clear violation of law. 4. Learned Additional Advocate General for the State has given a statement before this Court that this was not being done as regarding Municipal Corporation, Roorkee a writ petition being WPMS No. 2944/2017 was pending before this Court, in which there was an interim order of this Court. 5. Since the aforesaid writ petition (WPMS No. 2944/2017) has been allowed by this Court today itself by holding that the exclusion of two villages from the Municipal Corporation, Roorkee was done without jurisdiction and in clear violation of law, therefore, this ground no more exists with the State. 6. 5. Since the aforesaid writ petition (WPMS No. 2944/2017) has been allowed by this Court today itself by holding that the exclusion of two villages from the Municipal Corporation, Roorkee was done without jurisdiction and in clear violation of law, therefore, this ground no more exists with the State. 6. Since the impugned notification is only a preliminary notification, hence the present writ petition stands disposed with the direction to the respondent authorities that before issuing the final notification, reservation regarding the Municipal Corporation, Roorkee shall also be considered and notification be made in accordance with law thereafter as contemplated, inter-alia in Section 7 of the Uttar Pradesh Municipal Corporations Act, 1959.