The Bombay High Court on Tuesday had dismissed batch of Writ Petitions challenging the State Election Commission’s notification of ward formation of the ensuing election of Aurangabad Municipal Corporation May-2020.
The High Court held that “There may be delusions or illusions, which are not sufficient to vitiate the whole process of election. It would not render the whole exercise of delimitation of wards and prescription of reservation and rotation, bad and illegal”.
Court also said that the State Election Commission seems to have taken every care for rotation of wards for reserved category as well as women reservation of wards. While reservation of wards the State Election Commission has taken into consideration reverse calendar and accordingly rotated the wards. The wards are required to be arranged in descending order for the purpose of rotating SC/ST reservation and accordingly it has been followed in this case.
“The contention of the petitioners regarding policy of reservation and rotation of seats has not been followed by State Election Commission is devoid of merit. It shall have to be taken into consideration that the State Election Commission is expected to follow the principles governing the rules and regulations and its own orders and circulars in its substance”, said by the High Court.
On maintainability of the writ petitions under Article 226 of the Constitution of India, the Division Bench of High Court comprised of Justice Shrikant D. Kulkarni & Justice S.V. Gangapurwala said that there is constitutional bar under Article 329 (a) of the Constitution of India which prohibits questioning delimitation of constituencies or allotment of seats in any court of law and it is clear that validity of laws relating to delimitation and allotment of seats made under Article 243-ZG of the Constitution cannot be questioned before any Court of law.
While dealing with an issue raised in the Writ Petition which is of allegation of leakage ofinformation by the officials of the Aurangabad Municipal Corporation and sharing the same with photocopy centers and media, the Court said that the State Election Commission has taken cognizance of the complaint made by the petitioners in this regard and on the basis of directions issued by the State Election Commission, the Municipal Commissioner, Aurangabad Municipal Corporation has initiated enquiry and report is awaited. Therefore, it may not be appropriate to make any comment on this issue and certainly it is not a ground to quash the final notification issued by the State Election Commission.
The Court said that “It is necessary to place on record the development after the petitions were heard at length and closed for judgment. The whole Nation is affected due to pandemic Covid-19. In that background, the Chief Secretary, State of Maharashtra has requested to the State Election Commission of Maharashtra to postpone the election of Aurangabad Municipal Corporation as well as other elections to be held as per the programme published earlier”.
Main challenge in the petitions was with regard to ward formation/delimitation, reservation of wards and non-adherence to the State Election Commission orders/circulars issued from time to time regarding rotation of reservation of wards for SC/ST/women reservation.
Learned counsel for the State Election Commission, Maharashtra contended that writ petitions filed by the petitions are not at all maintainable in view of constitutional bar on the jurisdiction of a Court of law including under Articles 226 of the Constitution in respect of any electoral matter including delimitation of constituencies/wards and allotment of reservation as provided in Chapter IX and IXA under Article 243-O and 243-ZG read with Article 329 of the Constitution of India.
According to the petitioners, the entire formation /delimitation of wards is based on the population of latest census. The State Election Commission is required to divide the city in to different wards according to the latest census figure, number of persons in each wards. In view of section 5(3) of the Maharashtra Municipal Corporations Act,1949 (hereinafter referred to as the MMC Act), population of Municipal area is required to be divided into 115 wards and thus, ratio of population per ward comes to 10679 +, maximum 10% permissible in this ratio and after having necessary calculation, maximum population per ward is 11747 and minimum population per ward is 9611.
The petitioners’ submissions before the High Court were: –
- Only in exceptional cases, for the reasons to be recorded in writing, rule of plus minus 10% of the average population per ward may be crossed. The reason is that entire reservation of Scheduled Caste/Scheduled Tribe is dependent on the total population and the percentage of population of those reserve categories in each ward.
- Permissible ratio of population + per ward is violated at 21 wards without any reason. The stand of the Aurangabad Municipal Council and the State Election Commission about inclusion of Satara and Deolai is perverse and unjustified. The rule of ratio of population per ward has been colourably used either to reserve or unreserved the wards either for women or for BCC, SC or ST”, said the petitioners.
- Delimitation notification issued by the State Election Commission can be challenged by invoking writ jurisdiction under Article 226 of the Constitution of India as no other remedies available and therefore the petitions are rightly maintainable. The State Election Commission is empowered in view of Section 5(3) of the Act to publish final notification after inviting objections from affected persons and consider those objections. This function is quasi-judicial function.
- The State Election Commissioner has delegated function of hearing of objections to a committee but the impugned notification is silent on the consideration of decision of the committee. The entire action needs to set aside on this ground. Hearing is important part and not an empty formality.
Therefore, according to the petitioners’ the draft notification issued by the Respondent/ Deputy Commissioner (Revenue), Aurangabad Municipal Corporation regarding delimitation /ward formation and draw of reservation of seats for the ensuing elections of Aurangabad Municipal Corporation needs to be quashed and set aside.
-India Legal Bureau