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2020 DIGILAW 267 (CAL)

Arup Dey v. State of West Bengal

2020-02-24

ARINDAM SINHA

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JUDGMENT : 1. Mr. Bhattacharya, learned senior advocate appears on behalf petitioner. On 7th February, 2020 he had prayed for leave to move the petition unlisted, on urgency. Mr. Bihani, learned advocate appears on behalf of the Commission and on that day had sought adjournment, for the petition to be moved on following Monday. Mr. Bhattacharya had submitted that adjournment be granted only upon record that publication, due to be made on 10th February, 2020 (Monday), should not be used as reason or ground to defeat the challenge. The petition was thereafter and today heard, whereupon this order dictated in Court. 2. Challenge of petitioner is against the Commission, on not implementing provisions in rule 3 of West Bengal Municipal Elections (Reservation of Seats) Rules, 1994, in respect of ward no. 29 in South Dum Dum Municipality. Mr. Bhattacharya draws attention to written order dated 17th January, 2020, which states under column 5 general category, inter alia, ward no. 29 stands reserved as a constituency for women. Going back to written order dated 28th April, 2014, on election held in year 2015, he demonstrates, the same reservation was made. Hence, there is no rotation. This is the challenge. 3. Mr. Bihani, learned advocate appears on behalf of the Commission and submits, sub-rule (3) provides for two groups. The first group is of those municipalities where general elections shall be held after bringing into force the sub-rule. The second group is of those municipalities where three consecutive terms of elections have been completed on providing for reservation of seats per provisions in sub-rule (2) and elections are to be held in those municipalities for the next, i.e., the fourth term, on complying with reservation being as in the first term applicable to the first group. The procedure to be followed for these two groups have been given in said sub-rule (3), particularly under clauses (c) and (d). However, second proviso under clause (d) requires same procedure to be followed as for reservation applied in elections of 2015, since that election was on procedure applied against the Municipality coming under the first group and this 2020 election is, therefore, the second consecutive term, requiring same procedure to be followed. That would explain said constituency being reserved again for women in the general category. To further elucidate on his submissions Mr. Bihani hands up a brief of documents, with copies to appearing parties. That would explain said constituency being reserved again for women in the general category. To further elucidate on his submissions Mr. Bihani hands up a brief of documents, with copies to appearing parties. He emphasizes on clause (iii) under sub-rule (1A) of rule 3, which is set out below: - "(iii) for the purpose of reservation of seats in accordance with the roster as specified in the Second Schedule, all the seats available for reservation shall be arranged in the ascending order of their assigned ward numbers with the ward having lowest number on the top of the list and an additional set of continuous serial numbers shall be given to them so that reservation may be made to match such continuous serial numbers with identical serial numbers in the roster." 4. He draws attention to the Second Schedule pursuant to rule 3(2)(b), being Roster for Reservation of Seats for Women by Rotation (for application to the Scheduled Castes, the Scheduled Tribes and the general category). He submits, reservation for women in upcoming elections to the Municipality have been notified separately, for women belonging to Scheduled Castes and Scheduled Tribes on the one hand and women belonging to general category on the other. In all there are 35 seats corresponding to 35 wards, where continuous serial number of seats and applied ward numbers are unlikely to match. Keeping aside two seats, reserved for women belonging to Scheduled Castes and Scheduled Tribes of four such reserved seats, 31 seats remain, among which the reservation for women in the general category has been made, as provided in the roster. The seats to be reserved are as in second term in this case, provided by the roster to be continuous seat serial nos. 2, 5, 8, 11, 14, 17, 20, 23, 26, 29. These serial number seats have been applied against ward numbers per clause (iii) of sub-rule (1A) extracted above. The Commission had meticulously applied reservation for women earlier in 2015 elections of the Municipality and has so applied to the upcoming elections. 5. Mr. Majumdar, learned senior advocate, Additional Advocate General appears on behalf of State. He hands up two copies of the same chart, the first being in respect of elections held in year 2015 and the second bearing writing to denote ward numbers, continuous seat serial numbers and reservation status as notified for the upcoming elections. 5. Mr. Majumdar, learned senior advocate, Additional Advocate General appears on behalf of State. He hands up two copies of the same chart, the first being in respect of elections held in year 2015 and the second bearing writing to denote ward numbers, continuous seat serial numbers and reservation status as notified for the upcoming elections. On query from Court he submits, the rules do not admit of variation or deviation from the roster. Mr. Bihani confirms that there cannot be variation or deviation and that the information given by State per the charts, is correct. 6. Mr. Bhattacharya replies that second proviso under clause (d) in sub-rule (3) of rule 3 does not apply in causing reservation for women. He files a supplementary affidavit on leave granted and copies served. From it, the following information given in order dated 10th February, 2020, made pursuant to aforesaid order dated 17th January, 2020, is extracted on constituencies reserved for women to be as follows: - Name of the Municipality Number of members to be elected to the Municipality Number of the Constituency Constituency reserved for Scheduled Castes and Scheduled Tribes Constituency reserved for Women (1) (2) (3) (4) (5) South Dum Dum Municipality 35 35 S.C. 4(a) S.T. 4(b) S.C. 5(a) S.T. 5(b) Gen. 5(c) 3, 12, 27 & 32 NIL 3 & 12 NIL 2, 6, 9, 13, 16, 19, 22, 25, 29 & 33 7. In page 38 of the petition, order dated 28th April, 2014 (in Form B) contains, inter alia, the following information:- Constituency reserved for Women (5) S.C. 5(a) S.T. 5(b) Gen. 5(c) Ward nos. 1 & 11 NIL Ward Nos. 2, 7, 10, 14, 17, 20, 23, 26, 29 & 32 8. Chart, handed up on behalf of State, applies or had applied continuous seat serial no. 25 to ward no.29 for elections held in year 2015. It is to be noticed that reservation on continuous seat serial numbers, applied in said election corresponds to the appropriate column in the roster. The seats applied to wards have different continuous seat serial numbers from ward numbers, the two numbers not being the same as demonstrated by continuous seat serial no. 25 applied to ward no. 29. 9. The Commission, in its brief of documents, has given, inter alia, Table 4, being application of continuous seat serial numbers for upcoming elections, to ward numbers. 25 applied to ward no. 29. 9. The Commission, in its brief of documents, has given, inter alia, Table 4, being application of continuous seat serial numbers for upcoming elections, to ward numbers. Again the continuous seat serial numbers match the appropriate column in the roster. It is seen from the table that this time continuous seat serial no. 26 has been applied to ward no. 29. Petitioner's challenge is that reservation for women has to be given by rotation. Ward no. 29 was reserved for women on elections held in year 2015. It is again being reserved for women. The basis of reservations for both, the elections held and to be held, is population figures from Census, 2011. There has been no change in number of seats nor number of constituencies. As such, the working of the mechanism provided by the rules, it not allowing for deviation from the roster provided in the Second Schedule, if correctly applied, cannot yield application of different continuous seat serial numbers in the same Municipality on same number of seats and constituencies, to same ward in consecutive second term election. It appears, the Commission has proceeded erroneously. More so, because Court understands, reservation for women in elections is to be 1/3rd of all seats taken together. The Second Schedule makes it clear that it provides for manner of reservation going on total number of seats, from which reservation shall be made on continuous seat serial numbers, as to be applied to Scheduled Castes, Scheduled Tribes and general category, for reserving seats for women by rotation. The challenge succeeds. Order dated 10th February, 2020 is set aside and quashed. The Commission will forthwith work out the reservation and issue draft by order and thereupon final order. 10. The writ petition is disposed of. 11. Mr. Bihani prays for stay of operation of the order. Prayer is considered and rejected.