Andhra HC (Pre-Telangana)
Channala Ramachandra Rao vs State Of A.P. And Others on 25 February, 2000
Equivalent citations: 2000(2)ALD652, 2000(2)ALT655
ORDER
1. Political Justice is a preambular promise of the Constitution of India. "We, the people of India" shall redeem the promise of 'political justice' is the underlying theme of the Constitution (Seventy Fourth Amendment) Act, 1992. The apprehension of the petitioners in this Batch of cases is that while attempting to achieve political justice, guaranteed right to 'equal protection of laws' another preambular promise is ignored. A deeper curial look is called for. On the eve of elections: to a century and odd urban local bodies-Nagar Panchayats, Municipalities and Municipal Corporations in the State of Andhra Pradesh, all questions raised and all issues involved in these cases are the same and hence are being disposed of by this common judgment, at the stage of admission with the consent of the learned Counsel for the petitioners and the respondents.
2. Reservation of seats in Educational Institutions, reservation of civil posts and quasi-Government posts and reservation of seats in legislative bodies, local bodies are matters of political expediency and executive policy mainly due to Directive Principles of State Policy and other mandatory provisions of the Constitution. When questions of rationality, legality and constitutionality are raised before the Courts, 'judicial process' becomes complex. All the same, principles of Administrative Law alone are applied for resolving the constitutional issues (see judgment of Scnvant, J., in S.R. Bommai v. Union of India, ). But by the very nature of the socio-politico and economic nature of the debate, they are bound to be various divergent views. In this context, the observations of the Hon'blc Sri Justice B.P. Jeevan Reddy in Indra Sawhney v. Union of India, , are apposite.
"....The questions arising herein are not only of great moment and consequence, they are also extremely delicate and sensitive. They represent complex problems of Indian Society; wrapped and presented to us as constitutional and legal questions, the decisions of this Court have not been uniform. They speak with more than one voice. Several opposing points of view have been pressed upon us with equal force and passion and quite often with great emotion. We recognise that these viewpoints are held genuinely by the respective exponents. Each of them feels his own point of view is the only right one. We cannot, however, agree with all of them. We have to go find answers, which according to us are the right ones constitutionally and legally."
3. At the outset, be it noted that in these matters the constitutional validity, vires and scope of various provisions of the Constitution, various A.P. State Legislative enactments as well as statutory rules framed thereunder and legality of the policy of the Government in reserving the offices of Chairpersons, Mayors and wards (seats) in Municipalities and Municipal Corporations in the State of Andhra Pradesh, arise for consideration. The various enactments to which a repeated reference is made in the course of the judgment are, Hyderabad Municipal Corporation Act, 1955 (HMC Act, for brevity), A.P. Municipalities Act, 1965 (the Act, for brevity), The Visakhapatnam Municipal Corporation Act, 1979 (Vizag Act, for brevity), the Vijayawada Municipal Corporation Act, 1981 (The VMC Act, for brevity) and the A.P. Municipal Corporation Act, 1994 (Corporations Act, for brevity). The relevant rules are A.P. Municipalities (Reservation of Offices of Chairpersons in Municipal Councils & Nagar Panchayats) Rules, 1995 (Chairperson rules, for brevity), The A.P. Municipalities (Reservation of seats in Municipal Councils and Nagar Panchayats) Rules, 1995 (the Ward Rules for brevity), A.P. Municipal Corporations (Reservation of Offices of Mayors) Rules, 1995 (Mayor Rules for brevity), A.P. Municipal Corporations (Reservation ofSeats) Rules, 1995 (Corporation Ward Rules for brevity).
Pleadings
4. The pleadings in these writ petitions need to be summarised first. In Writ Petition No.955 of 2000, the petitioner is a resident and registered voter of Jaggaiahpet Nagar Panchayat. He desires to contest for the post of Chairperson of the Nagar Panchayat in the ensuing elections. In this writ petition, he prayed for an appropriate writ in the nature of mandamus declaring that the reservation of the office of Chairperson of Nagar Panchayat in favour of backward class candidate on the basis of the population figures gathered by A.P. Backward Classes Co-operative Finance Corporation Ltd., (hereafter called 'the B.C. Corporation) and projected through Bureau of Economics and Statistics without following the mandate given by the Full Bench in Satyanarayana Reddy v. State of A.P., 1987 (1) ALT 665 is unjust, arbitrary and violative of Article 14 of the Constitution and for a further declaration that the election to be held to the post of Chairperson of Jaggaiahpet Nagar Panchayat is void.
5. In this writ petition, the Government of Andhra Pradesh and the State Election Commission are arrayed as respondents I and 4 respectively. The other respondents are the Election Authority-cum-Commissioner of Jaggaiahpet Nagar Panchayat (respondent No.2), the District Collector, Krishna (respondent No.3) and Union of India (respondent No.5).
6. The main contention in the affidavit is that pursuant to insertion of Article 243-T in the Constitution, Section 23 was amended in the Act. This provision provided reservation of seats in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and women. Respondent No.4 reserved the post of Chairperson of Jaggaiahpet Nagar Panchayat in favour of backward class citizens without any data or material though backward classes do not constitute 25% of the total population of Jaggaiahpet Nagar Panchayat. The respondents relying on the figures collected by the B.C. Corporation, as projected by Bureau of Economics and Statistics have reserved the office of Chairperson, of Jaggaiahpet Nagar Panchayat in favour of backward classes as published in the daily newspapers. The population figures collected in the survey conducted by the B.C. Corporation do not furnish the correct figures and in fact the survey was not conducted on a scientific basis. The figures were inflated. According to the petitioner, in Salyanarayana Reddy case (supra), the Full Bench has laid down that if the survey conducted by the B.C. Corporation is to be made basis, it can only be done after publication of the survey results, inviting objections and considering the same and then publishing the population figures finally. According to the petitioner, the State Election Commission (hereafter called 'the Commission') has not published the results of the survey conducted by the B.C. Corporation and that the figures are not made available to the public for scrutiny. Even the final figures are not published and, therefore, adoption of the population figures given by the B.C. Corporation and projected by the Bureau of Economics and Statistics is contrary to the mandate of the Full Bench.
7. Respondents 1, 2 and 4 have filed counter affidavits. The first respondent, in the counter affidavit, states that the Government has not issued notification relating to reservation of offices of Chairpersons to the Municipalities (as on the date of filing the writ petitions). According to Section 23 of the Act, the Government, by notification, shall reserve such number of offices to the Scheduled Castes, Scheduled Tribes, Backward Classes and women out of the total number of offices of Chairpersons of the Municipalities in the State subject to such rules as may be prescribed. In G.O. Ms. No.36, Municipal Administration & Urban Development (Elecs.II) Department, dated 3-2-1995, the Government has issued rules for the manner of reserving offices of Chairpersons to the Municipalities. As the Stage Legislature expressed its intention to reserve the offices of Chairpersons of Backward Classes, in the absence of census figures of Backward Classes, a mechanism has to be worked out to find out the population figures of backward Classes. Therefore, the rules relating to reservation to Backward Classes provide that for such purpose the population figures of Backward Classes gathered in the socio-economic survey conducted by the B.C. Corporation duly projected to 1-3-1991 should be taken as the basis. The B.C. Corporation, during 1980, held socio-economic survey for the Backward Classes and gathered population figures. Since M-3-1991 is the qualifying date for 1991 census', the Government decided to project the 1980 survey figures to 1-3-1991 and to take them as the basis. Adverting to the main allegation that the directions issued by the Full Bench in Satyanarayana Reddy case (supra) have not been followed, the first respondent states that socio-economic survey in Jaggaiahpet Nagar Panchayat was conducted during 1986 and the figure of backward class population is 9,579 and it became 11,202 as projected to 1-3-1991 by the Bureau of Economics and Statistics. The first respondent further states that the Government in G.O. Ms. No. 34, Municipal Administration & Urban Development (E!ecs.II) Department dated 3-2-1995 issued guidelines to be followed by the district Collectors. The District Collectors were directed to publish the population figures, call for objections and after considering the objections, if any, publish the final figures in the District Gazette. The District Collector, Krishna District published the figures (draft) on 6-2-1995. Notification was published on the notice boards of the District Collector's office, Municipal office and local newspapers inviting objections. As no objections were received, the backward class population figures of Jaggaiahpet Nagar Panchayat were duly published in the District Gazette on 10-2-1995. The first respondent also denied the allegation that the office of the Chairperson was reserved for backward classes without any basis. For the purpose of reserving the offices of Chairpersons in all the Municipalities, the entire State is taken as a unit, tables have been prepared showing the percentage of population of various categories in all the Municipalities in descending order and the reservation for various categories has been made with reference to required number in proportion to the population of that category. As the Constitution mandates a term of five years for elected Municipal Council, the elections to the next Council have to be completed before the term and, therefore, the 4th respondent is contemplating to hold elections before the expiry of the term to the present Municipal Council.
8. The Election Authority-cum-Municipal Commissioner, Jaggaiahpet, in his counter affidavit, stated that as per 1991 census, the population of Jaggaiahpet is 36,122. Out of this, 3,884 belong to Scheduled Caste, 1,178 belong to Scheduled Tribe, 17,897 - women and 11,202 belong to Backward Classes. Therefore, the population of Backward Classes is more than 30%. During the last elections, the post of Chairperson was not reserved and it was for OC general and, therefore, during the ensuing elections the Government has reserved the office of Chairperson for Backward Classes. By Andhra Pradesh Act 17 of 1994, the State Legislature has inserted clause (c) in sub-section (1) of Section 23 of the Act, which enables reservation of one-third of offices and seats/ wards to backward classes and, therefore, reserving the office of Chairperson is justified.
9. The commission through its Secretary has filed counter affidavit. Relying on Ward Rules and the orders issued by the Government in G.O, Ms. No.37, Municipal Administration & "Urban Development (Elecs.II) Department, dated 3-2-1995 under which the Government delegated the powers to the Commissioner & Director of Municipal Administration and G.O. Ms. No.38, Municipal Administration & Urban Development (Elecs.II) Department, dated 3-2-1995 under which the concerned District Collector was delegated powers, the Commission states that for the purpose of reservation of offices of Chairpersons, the 'authority specified' is the Commissioner of Municipal Administration and the District Collector is the 'authority specified' for the purpose of determination of specified wards to Scheduled Castes, Scheduled Tribes, Backward Classes and Women in Municipalities and Nagar Panchayats. The Commission has no role in the reservation of wards in the Municipalities and hence the Commission is only proforma respondent.
10. In Writ Petition No.2014 of 2000, the challenge is as to the validity of Section 14-A of the Corporations Act, Section 23 of the Act, the Rules framed thereunder and the Government Order in G.O. Ms. No.71, Municipal Administration & Urban Development (Elect.II) Department, dated 5-2-2000, as being ultra vires the provisions of the Constitution in Articles 243-P, 243-Q and 243-T. Consequential directions to the Government and the Commission are also sought to conduct the elections to Nagar Palikas, Municipal Councils and Municipal Corporations treating them as one unit by issuing a single notification reserving the seats and offices to various categories for all 'urban area self-Govemment institutions' in accordance with the Constitution. The averments made in the affidavit are as follow: The petitioner is a resident and registered voter of Kakinada Municipality. He is aggrieved by the manner in which reservations are provided for by the first respondent to the offices of Chairpersons and Mayors in various Nagar Panchayats, Municipalities and Municipal Corporations. The Constitution contemplates that all the institutions of self-Government in urban areas are one unit and as per Part IX-A of the Constitution, no distinction can be drawn among the three urban local bodies. Even with regard to provision of reservations under Article 243-T of the Constitution, the Constitution contemplates reservations for all the offices of Chairpersons as one unit without making any distinction. Hence, while prescribing percentage of reservations, all the Municipalities have to be taken as one unit. The first respondent issued separate notifications providing for reservations to Municipal Councils and Municipal Corporations treating them as separate units and hence the notifications are null and void. Further, if all the units of municipal administration in the State are treated as one unit based on the population of various categories, reservations now announced will prove contrary to the scheme including reservation of office of Chairperson for Backward Classes (General) of Kakinada Municipality. If a single notification is issued, Kakinada Municipality will fall in general category and the petitioner would be entitled to contest for the office of Chairperson. The contentions of the respondents in the counter affidavit shall be referred to at appropriate place in this judgment.
11. In Writ Petition No.2013 of 2000, the constitutional validity of Rule 9 of the Chairperson Rules, Rule 9 of the Ward Rules and the Government Order in G.O. Ms. No.71, dated 5-2-2000, are questioned. The petitioner is an advocate, resident and registered voter of Tadepalligudem Municipality. He is aggrieved by the impugned G.O., under which the office of Chairperson of Tadepalligudem Municipality is reserved for Backward Classes (General). The averments in the affidavit accompanying the writ petition are as follows. As per Rule 9 of the Chairperson Rules, for the purpose of reserving the office of Chairperson to members belonging to Backward Classes, the population figures gathered in the socio-economic survey conducted by the B.C. Corporation duly projected to 1-3-1991 shall have to be taken as the basis. No such survey was conducted on any scientific or regular basis as observed by the Full Bench in Satyanarayana Reddy case (supra). If the survey were conducted, there would not have been any necessity for drawing lots for reserving wards for Backward Classes. The authorities did not publish any such list in the Municipality area and did not keep any data for scrutiny. Therefore, the very basis for making reservations in the Municipality for backward classes as per the orders in G.O. Ms. No.71, dated 5-2-2000 is unsustainable and accordingly the G.O. is liable to be declared as null and void. Rule 9 of the Ward Rules directing reservation of wards for Backward Classes to be decided by drawal of lots is wholly arbitrary and violative of Article 14 of the Constitution. In 1995 elections, the office of Chairperson of Tadepalligudem Municipality was reserved for women (General) and hence the petitioner is deprived of the right to contest for the post. Even during this election, the office of the Chairperson is reserved for Backward Classes (General) due to wrong and misleading data and, therefore, the petitioner's right to contest in the election has been illegally deprived. No scientific basis is adopted for ascertaining the backward class population as on 1-3-1991. The method now adopted for reserving the wards for backward classes is wholly arbitrary and unsustainable and violative of Article 14 of the Constitution.
12. The first respondent filed counter affidavit. The same is as follows: Since 1987 the Government introduced various reforms in Municipal Law. It was for the first time decided to reserve 20% of total number of Offices of Chairpersons in favour of BCs. It is a legislative policy brought in by the Government for reservation of SCs., STs., and Woman. In 1991, when census with enumeration blocks as units. and the ward-wise figures of SCs., and STs., could also be worked out with authenticity whereas 1991 census does not furnish the population figures of BC. Therefore, the population figures gathered by the B.C. Corporation which conducted survey during the period from 1-1-1984 to 31-12-1986 became the basis for reservation with reference to the relevant date which is 1-3-1991. The counter-affidavit also refers to the various provisions of the Seventy Fourth Amendment to the Constitution, the Act as amended in 1994 and various rules. The counter states that the only figures available for BCs., are the figures gathered by the B.C. Corporation, which were duly projected to 1-3-1991. These figures formed the basis for reservation of offices of Chairpersons. The figures duly projected to 1-3-1991 are published by the concerned District Collectors in accordance with the directions issued by the Government in G.O. Ms. No.34, dated 3-2-1995. The final figures were published in the District Gazette in the local newspapers and also announced on All India Radio for the information of the public. This exercise was undertaken as per the orders of the Hon'ble High Court in Satyanarayana Reddy case (supra). The Government determined and specified the number of offices of Chairpersons for SCs., STs. and BCs., duly following the procedure contemplated under Rule 7 of the Chairperson Rules with reference to largest percentage of population of the respective category to the total population of the municipality in the descending order. The counter affidavit also refers to State Government Orders being G.O. Ms. No.37, dated 3-2-1995 and G.O. Ms. No. 38 dated 3-2-1995 where under the power was delegated to the Commissioner and Director of Municipal administration for fixing the number of offices of Chairpersons reserved for various categories and also delegating the powers by the latter G.O., to the concerned District Collectors specifying the wards which are reserved. As the Office of Chairperson of Tadepalligudem was reserved for Woman (General) in 1995 elections, this time the same was reserved for BCs. The contention of the petitioner that the BC population of Tadepalligudem is about 18-19% of the total population is unfounded. The population of the said Municipality as notified by the District Collector in February, 1995 is 24,028 (27.035%) to the total population of the Municipality. The counter also says that the writ petition is not maintainable in view of Article 243-ZG of the Constitution. After 1995 elections the first meeting of Tadepalligudem Municipal Council was held on 29-3-1995. Therefore, under Article 243-U(1) read with Article 243-U(3)(a), election to a Municipality will have to be completed before the expiry of the term of five years i.e., 28-3-2000. Therefore, interference by this Court is not called for.
13. In Writ Petition No.1720 of 2000, the petitioners seek a declaration that reservation of one-third of the wards in all the Municipalities of the State in favour of backward classes is illegal and arbitrary and for a further declaration that Rule 9 of the Ward Rules as illegal and arbitrary. A consequential direction is also sought directing the respondents to hold the Municipal elections only after estimating the population of backward classes in the State by fixing criteria for the quantum of reservation to the seats. The petitioners are residents of Gajuwaka Municipality. On 24-1-2000, the District Collector, Visakhapatnam, the 5th respondent herein, circulated a letter to all the political parties to be present in the lottery to be conducted on 28-1-2000 for deciding the wards to be reserved for Backward Classes. On 28-1-2000, a lottery was conducted and out of 32 wards, ward Nos. 2, 3, 5, 9, 10, 12, 13, 19, 20, 26 and 32 (11 wards) were reserved for the candidates belonging to Backward classes. Ward No. 5, where the second petitioner resides and Ward No.26, where the first petitioner resides are reserved for backward classes and as both the petitioners do not belong to backward class, they are not able to contest in the ensuing Municipal elections. According to the petitioners, ward No.5 comprises two villages called, Kaputungalam and Redditungalam, where the population of Kapu and Reddy communities is predominant and the Backward Class population is nominal. In Ward No.26, the population of Backward Class is miniscule. Aggrieved by this reservation of Ward Nos.5 and 26 for backward classes, the writ petition is filed. The petitioner has referred to the provisions of Section 8 of the Act as amended by Act No. 17 of f994 and the various provisions of the Constitution as amended by the Constitution (Seventy fourth Amendment) Act, 1992. The main contention is that the action of the respondents in reserving 11 wards for Backward Classes in Gajuwaka Municipality is contrary to the judgment of this Court in Satyanarayana Reddy case. It is further averred that the method of lottery adopted by the 5th respondent is contrary to the law laid down by a Full Bench of this Court in S. Fakruddin and others etc. v. Govt. of AP., and, therefore, Rule 9 of the Ward Rules is liable to be struck down.
14. A citizen belonging to Scheduled Caste community files Writ Petition No. 1308 of 2000. He wants to contest in the Municipal elections. His grievance is that the Government's action in seeking to reserve the office of Chairperson of Gudivada Municipality for Backward Classes is illegal and untenable as the backward class population of Gudivada is not more than 25%. While giving the population figures of various municipalities, the petitioner avers that the respondents have not followed the directions issued by the Full Bench and followed the method of reserving the Municipalities showing the percentage of population of Scheduled Castes, Scheduled Tribes and Backward Classes in descending order and then identified the offices of Chairpersons from the top ignoring the Municipalities which were already reserved in the earlier list. This method, which might result in reserving the office of Chairperson for Scheduled Castes, Scheduled Tribes and Backward Classes even where the population of these categories is negligible, is against the Constitutional scheme. The petitioner's further grievance is that for the purpose of identifying the wards to be reserved for Backward Classes, a lottery system is adopted which is erroneous and contrary to the dicta of the Full Bench is Pakruddin case (supra). The District Collector, Krishna conducted lottery on 25-1-2000 in the presence of politicians to identify the wards for reservation, which is unconstitutional. The petitioner also filed two miscellaneous applications during the course of arguments. One application is for permission to file additional documents. The petitioner annexed G.O. Ms. No,71, dated 5-2-2000 under which the Government issued a notification in exercise of powers under Section 23 read with Rules 3 and 12 of the Chairperson Rules and determining 67 Municipalities and Nagar Panchayats in the State as specified in Schedule II to the Notification as Municipalities, Nagar Panchayats reserved for members belonging to Scheduled Castes, Scheduled Tribes, Backward Classes and women for reservation to the offices of Chairpersons to the said Municipalities and Nagar Panchayats. Another miscellaneous application filed by the petitioner is seeking amendment of the prayer in the writ petition. Now, the petitioner impugns G.O. Ms. No.71, dated 5-2-2000 and the relevant Rules in the Chairperson Rules as well as Ward Rules as being illegal and unconstitutional.
15. The Government of Andhra Pradesh, the first respondent in the writ petition filed counter, ft is stated that the socio-economic survey of Gudivada was conducted on 1-1-1986. The Bureau of Economics & Statistics then projected backward class population to 1-3-1991. The District Collector followed the procedure/ guidelines issued by the Government and published the final figures in the District Gazette on 10-2-1995 and, therefore, the law laid down by this Court is followed. The other averments in the counter are similar to the averments made in the counter affidavit filed in Writ Petition No.955 of 2000.
16. In Writ Petition No.1992 of 2000, the petitioner is a registered voter and resident of Vikarabad Municipality. He is aggrieved by the orders of the Government in reserving the office of Chairperson of Vikarabad Municipality for Backward Classes (women). In the petition under Article 226 of the Constitution, he prayed for a declaration that G.O. Ms. No.71, dated 5-2-2000 insofar as the same seeks to reserve the office of Chairperson of Vikarabad Municipality to Backward Classes (women), is illegal and contrary to the provisions of the Act and Chairperson Rules and consequently direct the respondents to delete the Vikarabad Municipality from the reserved category. The averments in the affidavit are similar to the one in WP No.955 of 2000, but the petitioner also averred that in Ranga Reddy District, Tandur Municipality has a backward class population of 18,859 (41.43% of the total population) whereas in Vikarabad Municipality, the backward class population is 13,032 (34.65%) and, therefore, Tandur Municipality ought to have been reserved following the amended Rule 7, which says that any reservations made in the earlier elections will have to be ignored. For this purpose, the petitioner relied on G.O. Ms. No.26, Municipal Administration & Urban Development (Elecs.I) Department, dated 17-1-2000, by which Rule 7 of the Chairperson Rules is amended. According to the amended Rule, the reservation of offices of Chairpersons shall be started afresh without any reference to the reservation of offices of Chairpersons made prior to the issuance of Chairperson Rules. Similar challenge is made in Writ Petition No. 2126 of 2000 by a practicing Advocate of Vikarabad who wants to contest Municipal Election to be held in March, 2000. In this writ petition, the petitioner also challenges the method of drawing lots for the purpose of reservation of Wards for backward classes. Relying on the census figures of 1991, it is averred that reserving 13 Wards in favour of SCs., STs. and DCs., while leaving open four wards for General Category is illegal and unconstitutional.
17. In the context of reservation of seats in Palakole Municipality, an Ex-Councillor of Ward No.l has impugned Rule 9 of the Ward Rules, in Writ Petition No.2077 of 2000. The other contentions in the writ petition are similar to those raised in the other writ petitions.
18. The petitioner in Writ Petition No.2081 of 2000 is a registered voter of Anantapur Municipality. He is aggrieved by the method of drawing lots for the purpose of reserving seats for backward class persons.
19. In Writ Petition No.2208 of 2000, the petitioner, present Councillor of ward No.19 of Mandapeta Municipality in East Godavari District, contends that Ward No.21 has been reserved for OC during the elections in 1987, 1995 and 2000 though the population of backward class is more than 50%. It is his contention that such arbitrary reservation is because of the lottery conducted in accordance with Ward Rules and hence he prays for a declaration that Rule 9 of the Ward Rules is violative of Article 14 of the Constitution and to hold elections only after estimating the backward class population and evolving a rational system of identifying wards for the purpose of reservation.
20. In Writ Petition No.230I of 2000 also, the action of the respondents viz., the District Collector, Cuddapah and the Commissioner, Cuddapah Municipality is reserving Ward No.l to B.C. (woman) instead of B.C. (general) is challenged being violative of Rules 4 and 8 of the Ward Rules.
21. In Writ Petition Nos.1992, 2077, 2081, 2126, 2208 and 2301 of 2000 separate counters are filed. But the legal contentions are same. I will refer to relevant factual averments in the course of judgment if necessary.
22. In Writ Petition Nos.2127 and 2214 of 2000, the reservation of the Office of Chairperson in favour of Women (General) in Kadiri Municipality and Gudur Municipality respectively is under challenge. The averments in Writ Petition No.2127 of2000 in brief are as follows. The petitioners are registered voters of Kadiri town, The first respondent, viz., the State of Andhra Pradesh, issued orders in G.O. Ms. No.70, Municipal Administration & Urban Development (Elec.II) Department, dated 5-2-2000 and G.O. Ms. No.71, dated 5-2-2000 determining reservations for the offices of Chairpersons belonging to SCs., STs. and Women. As per item 19 of Schedule II of G.O. Ms. No.71, dated 5-2-2000, the office of Chairperson of Kadiri Municipality is reserved for Women (General). The reservation made is not in conformity with the scope and object to be achieved and it is not in accordance with Section 23 of the Act. For making reservation for Women (General), the respondents have totally omitted some Districts though the population figures suggest that there are number of municipalities with larger percentage of women than Kadiri Municipality. According to the petitioners, there are at least 14 municipalities in the State that have more percentage of women population than Kadiri, which is 49.23%. Therefore, in the absence of any guidelines, the impugned notifications are unsustainable being capricious and motivated.
23. The averments in Writ Petition No.2214 of 2000 also proceed on similar lines. In this writ petition, it is further averred that while making reservation for SC, ST and Women, the State has treated the entire State as a unit, prepared a table in the descending order of percentage for each category, then identified the Municipality from top. According to the petitioner, even if this method is followed strictly Gudur Municipality cannot be reserved for Women.
24. In the counter-affidavit filed in both these writ petitions (Writ Petition Nos.2127 and 2214 of 2000), the averments are as follows. The reservation for the offices of Chairpersons started in 1981 when the elections were held after a gap of nine years. 14%, 5% and 4% of the offices of Chairpersons were reserved for SCs., STs. and Women respectively. Such reservation was made with reference to the largest percentage of the said category to the total population of the Municipality in the descending order having regard to Clause 27(a) of Section 2 of the Act which defines the word 'population' as meaning "the population ascertained at the last census of which all the relevant and necessary figures have been established." The census of 1991 contains the authentic population figures of SCs., STs. and Women. In 1987, the Government took up a policy decision to increase reservation, introduce direct election of Chairpersons, conduct municipal elections on party basis, issue photo identity cards etc., Reservations were increased to 50%, increasing SC, ST and Women reservations of 15%, 6% and 9% respectively to the total number of offices. For the first time, 20% of the total number of offices of Chairpersons was reserved for members belonging to backward classes. The number of offices of Chairpersons reserved was decided with reference to the State as a unit. Reservation to members belonging to various reserved classes was made with reference to the largest percentage of population of the said category to the total population in the municipality in the descending order. In doing so, the population figures of 1991 census for SC, ST and Women were considered. The population figures for BCs., were not available with reference to 1991 census and, therefore, BC Corporation, conducted socio-economic survey in the State in various Districts and towns during 1-1-1984 to 31-12-1986. The survey was not conducted for the purpose of elections. As the figure of BC population is an indicator, the Government decided reservation of BC citizens based on the population figures of BCs., gathered in the socio-economic survey conducted by the said Corporation. Therefore, the relevant population figures with reference to SC, ST and Women related to 1991 census whereas for BCs., the figure relates to the dates ranging from 1-1-1984 to 31-12-1986. Though the Full Bench of this Court in Satyanarayana Reddy case (supra), found the figures gathered during the survey conducted by the BC Corporation not giving the correct picture, the Court directed that the figures be published, objections be called for and after considering the objections, final figures be published which can be used for any purpose including election purpose. Accordingly, the District Collectors followed the procedure and issued final notifications in the District Gazette publishing the figures gathered by the BC Corporation duly projected to 1-3-1991, which is the relevant date for the purpose of 1991 census. These figures were taken as basis for making reservations in respect of backward class people. After coming into force of Constitution (Seventy Fourth Amendment) Act with effect from 1-6-1993, the State Legislature amended the Act with effect from 1-6-1994 providing for reservation for SCs., STs. on the basis of population, reserving one-third of offices of Chairpersons to backward classes, providing for reservation of not less than one-third offices to Women and providing for rotation while making reservation to various categories. Rules were also framed in G.O. Ms. No.36, dated 3-2-1995. These Rules are exhaustive and were followed while making reservation for the offices of the Chairpersons. The State Government also raised an objection for entertaining the writ petition having regard to the provisions of Article 243-ZG of the Constitution.
25. In Writ Petition No. 2039 of 2000, the petitioner, a registered Voter who intends to contest for the post of Mayor, challenges the action of the Government in reserving the post of Mayor in Vijayawada Municipal Corporation in favour of Backward Classes (women). It is the case of the petitioner that though the backward class population of Vijayawada Municipal Corporation does not exceed 25%, the same is reserved in favour of BC (women). The reservation is made based on the population figures gathered by the BC Corporation during socio-economic survey. The respondents have carried out the exercise of reservation without following the directions issued by the Full Bench of this Court and decision is taken with an ulterior motive to deprive the genuine candidates like the petitioner with the opportunity of contesting for the office of Mayor.
26. In Writ Petition No.2043 of 2000, the two petitioners belong to BC (D) category. They submit that the method of drawing lots for the purpose of BC reservation is discriminatory and unconstitutional. Rule 10 of the Corporation Ward Rules, which prescribes such procedure, is unconstitutional. The method of taking lottery is also contrary to the ratio of the Full Bench of this Court in Fakruddin case (supra). The petitioners also state that the Mayor of the Corporation also addressed letters on 19-8-1999 and 22-12-1999 requesting the Government to increase the number of wards from 50 to 55 so as to remove the disparity of Voters in different wards, which varies from 2000 to 20,000. The request of the Mayor was not considered. Therefore, they pray for a direction to the respondents to make reservation of seats for members belonging to backward classes in Vijayawada Municipal Corporation with reference to the largest percentage of the population of the said category to the total population of the ward in the descending order and also to remove the disparity of voters in the ward which should be fixed at 55 as requested by the Mayor of the Corporation,
27. The counter-affidavit filed by the first respondent, while referring to the various constitutional provisions in Part IXA of the Constitution as well as the statutory rules, justifies the reservation for backward classes based on the figures gathered by the B.C. Corporation. The other contentions in the counter are common to the counters filed in other cases.
Contentions and Submissions:
28. Sri E.Manohar, Sri S. Venkata Reddy, Sri M.S.K. Sastry, Sri T. Ball Reddy, learned senior Advocates and Sri E. Ella Reddy, senior member of the Bar, ably represented the petitioners. The other learned Counsel whose assistance is of no less significant are M/s. K.S. Murlhy, R. Raghunandan Rao, S. Niranjan Reddy, A. V. Sesha Sai, N. Vasudeva Reddy and P. Raghavendra Reddy. The State Government presented a formidable defence through the learned Advocate-General, Sri Venkata Ramanaiah, assisted by Sri M. Rama Rao, learned Government Pleader for Municipal Administration. All the learned Counsel deserve the gratitude of this Court. The rival contentions of the petitioners and the respondents are as under.
29. Sri E. Ella Reddy submilted that in view of the judgment of the Full Bench of this Court in Satyanarayana Reddy case (supra) the survey conducted by the BC Corporation is defective, that the respondents have not published the figures as directed by the Full Bench and, therefore, placing reliance on those figures and reserving the office of Chairperson of Jaggaiahpet Municipality is unsustainable.
30. Sri E. Manohar, the learned Senior Counsel attacked Rule 9 of Chairperson Rules and Rule 9 of A.P. Municipalities Ward Rules as being violative of Article 14 of the Constitution. He also submits that G.O. Ms. No.71, dated 5-2-2000 specifying the number of offices of Chairpersons reserved for members belonging to SCs., STs., BCs. and Women and determining and notifying 67 Municipalities and Nagar Panchayats in the State as reserved for those reserved classes is arbitrary and illegal. Dealing with the validity of Rule 9 of the Chairperson Rules, the learned Counsel submits that for the purpose of reserving the offices of Chairpersons for members belonging to backward classes, the population figures gathered in the socio-economic survey conducted by the B.C. Corporation duly projected to 1-3-1991 are taken as the basis. Such survey was not conducted on scientific basis in the State or in any wards of Tadepalligudem Municipality. The Full Bench of this Court accepted this position. If the survey was conducted in various wards, there would not be any necessity for drawing lots for reserving the wards. Further, it is his submission that the authorities did not publish any such list in the Municipal ward or did not keep open the data for inspection and scrutiny nor the officials made the data available for the public to ascertain whether the data was correct or not. Though the Full Bench of this Court held that the survey conducted by the BC Corporation was defective and hence cannot be taken as disclosing the correct picture, the Court directed the Government and others first to publish the data collected by the BC Corporation, call for objections, consider the objections and publish the final figures. Such direction were not at all followed in the case of Tadepalligudem Municipality or elsewhere in the State. Therefore, the impugned G.O. is null and void.
31. Dealing with vires of Rule 9 of the Ward Rules, the learned senior Counsel would submit that the rule, which says that the reservation for wards for members belonging to backward classes shall be decided by lottery, is wholly arbitrary and violative of Article 14 of the Constitution. It is irrational to do so as population figures of backward classes are not available ward-wise in the Municipal area. The learned Counsel also relied on the judgment of the Full Bench in Narayana Rao v. State of A.P., AIR 1987 AP 57 and Fakniddin case (supra).
32. Sri Ball Reddy, the learned senior Counsel while adopting the arguments of Sri E. Manohar, further submitted that though Vijayawada municipal Corporation had figures for B.C. population for 1991, the same were ignored and 'authority' specified' resorted to conducting lottery for the purpose of reservation of wards for Vijayawada Municipal Corporation. When the authorities considered and relied on the 1991 census population figures for SCs, STs and Women for the purpose of reservation, the same method ought to have been adopted while making reservation for backward classes. In adopting a different procedure of conducting a lottery as per Rule 10 of Corporation Ward Rules, the respondents have committed an illegality and the same in unconstitutional.
33. Sri S. Venkata Reddy, the learned Senior Counsel relied on the provisions of Articles 243-P, 243-Q, 243-R, 243-T and submits that as per the Constitution scheme, Nagar Panchayats, Municipal Councils and Municipal Corporations are urban local bodies to be treated as one entity, that while conducting elections, the Commission has issued two notifications, one for conducting elections to Municipal Councils and another for conducting elections to Municipal Corporations, which is not permissible under the Constitution, that all the urban local bodies shall have to be treated as one homogeneous unit for all purposes including for the purpose of reservation of seats for SCs., STs., Women and Backward Classes in accordance with Article 243-T of the Constitution of India. If all the municipal bodies in the State are treated as one unit and a single notification is issued for purpose of reservation, the office of Chairperson of Kakinada Municipality will be allotted to general category and the petitioner being a person belonging to general category would not be deprived of the right to contest for the office of Chairperson. In view of this, it is contended that Section 14-A of the Corporations Act and Section 23(1)(c) of the Act, are ultra vires the provisions of Article 243-P read with Article 243-T(6) of the Constitution.
34. In Writ Petition No.2127 of 2000, the petitioner is aggrieved by the action of the State Government in reserving the office of Chairperson of Kadiri Municipality for Women (General). The learned Senior Counsel, Sri. M.S.K. Sastry, appearing for the petitioner submits that if the State is taken as a unit, other municipalities ought to have been reserved for Women. Relying on the women population figures for about 14 municipalities, he submits that the women population of Kadiri Municipality is 49.23% whereas in other 13 Municipalities, the women population is higher. Inspite of this, it is submitted, the other municipalities were excluded and Kadiri Municipality was reserved for Women (General) in an arbitrary and motivated manner. Therefore, he would pray this Court to declare G.O.Ms.No.70, dated 5-2-2000 and G.O. Ms. No.71, dated 5-2-2000 reserving Kadiri Municipality in Anantapur District for Women (General as illegal and void.
35. The other learned Counsel who appeared in other cases challenging the reservation of the offices of Chairpersons and Mayors or reservation of seats in the wards of respective municipalities or Corporations have adopted the arguments of the learned Senior Counsel. In addition, various learned Counsel also raised certain independent grounds. I will deal with them at appropriate time.
36. Sri K.S. Murthy, learned Counsel for the petitioner in Writ Petition No.1308 of 2000 submits that clause (6) of Article 243-T of the Constitution is an enabling provision giving a constitutional option to the State Government to lay down a policy of affirmative action favouring backward classes. In such a situation, there is a duty to act in a fair and reasonable manner and lay down a policy whose implementation would have nexus with the object to be achieved. For doing so, the State Government has to depend on a rational scientific method. When in 1987 the reservation for BCs., was 20% it is enhanced to one-third of the total number of municipalities without any basis. The State Government based its decision on the socio-economic survey conducted by the BC Corporation, which is not equipped to do survey, and the data collected by it is most unscientific. Though a Full Bench of this Court pointed out the defects and indicated the procedure for publishing final figures, the State authorities and Municipal authorities have not rectified the defects pointed out by this Court. Therefore, any publication of the final figures would be invalid as they were not furnished to political parties and the State Government did not make them available for sale. The learned Counsel has also contended that the method of conducting lottery for the purpose of allotting seats for reserved classes is contrary to the dicta in Faknuidin case (supra).
37. In Writ Petition Nos. 1992 and 2126 of 2000, the reservation of the office of Chairperson for BC (women) is under challenge. In the latter writ petition, the challenge is also as to the method of allotment of seats for reserved classes by conducting lottery. The main submission in these two writ petitions as canvassed by Sri S. Niranjan Reddy, Sri N. Vasudeva Reddy, respectively is that the BC population of Tanduru Municipality in Ranga Reddy District is 18,859 (41.43%) whereas in Vikarabad, the percentage of BC population is 34.65% and, therefore, reserving the office of Chairperson of Vikarabad in favour of BC (women) is illegal and arbitrary. It is also their submission that the office of Chairperson of Vikarabad Municipality was already reserved in the earlier election and, therefore, in accordance with Rule 7 of the Chairperson Rules, as amended by G.O. Ms. No.26, dated 17-1-2000, Vikarabad again cannot be reserved for B.C. (women).
38. In Writ Petition No. 1720 of 2000, argued by the learned Counsel, Sri R. Raghunandana Rao and Writ Petition No.2077 of 2000 argued by learned Counsel Sri. A. V. Sesha Sai, a question is raised to the affect that the "creamy layer' among the backward classes are also conferred the benefit of reservation in the elections for the offices of the Chairpersons as well as the wards and, therefore, without excluding the persons falling within the 'creamy layer' among the reserved classes, there cannot be an effective reservation contemplated under clause (6) of Article 243-T of the Constitution. In support of this, the petitioners relied on the judgment of the Supreme Court in Indra Sawhney case (supra).
39. All the learned Counsel for petitioners relied on three Full Bench decisions of this Court and other decisions of (he Supreme Court.
40. The submissions of the learned Advocate General are as follows. All the writ petitions challenge the law or notifications issued dealing with 'delimitation of constituencies'. The writ petitions also challenge the notifications dealing with allotment of seats to constituencies/wards. Therefore, clause (a) of Article 243-ZG bars the jurisdiction of this Court under Article 226 of the Constitution. The taw referred to in clause (6) of Article 243-T is only the law relating to delimitation of constituencies and hence there is a total embargo for this Court to go into the validity of law or the validity of Rules made in exercise of powers conferred under the law. It is also the submission that Rules 6, 7, 8 and 9 of Ward Rules do not create new constituencies. The parent law and the Rules provide that one-third of wards be reserved for backward classes. In so doing, the right of franchise and the democratic nature of the Municipal institution are not affected. In view of this, the method of 'drawal by lots' for reservation of wards is a rational method that is also recognised by clauses (1) and (3) of Article 243-T of the Constitution. A loltery in the usual sense is not resorted to. After arranging the wards depending on the ward-wise population in descending order, the reserved wards are to be rotated once every time the election is conducted and for that purpose of choosing the required number of reserved wards for BCs., the same is done by drawal of lots. Such a method is not lottery in the usual sense or legal sense. The method of 'drawal of lots' is transparent and is in the presence of the elected representatives and other persons interested to reserve a particular ward or wards during a particular election, The reservation of a particular ward for BCs., during the elections in a given year is not a permanent feature and it is variable. Therefore, this is not a lottery in the usual sense. Clause (b) of Article 243-ZG creates rights and provides for adjudication by a special Tribunal to the exclusion of all courts including the High Courts and, therefore, when there is an effective alternative remedy, the writ petitions cannot be entertained.
41. The power of judicial review under Article 226 of the Constitution, it is urged, in matters of 'policy of affirmative action' is restricted to the examination whether there is some relevant material before the Government to support such policy. While inviting attention to various provisions of Part IX-A of the Constitution, and the history of the Legislation dealing with the Municipalities and Municipal Corporations especially the provisions of these two laws providing for reservation, it is submitted that reservation of constituencies and seats in municipalities is mandatory requirement of the Constitution. Clause (6) of Article 243-T is not only enabling provision but it is a provision empowering the State Legislature to make any provision for reservation of seats in any municipality for offices of Chairpersons in favour of backward class citizens in accordance with the scheme of the Constitution as envisaged in clauses (1) to (5) of Article 243-T of the Constitution.
42. The learned Advocate-General also invited attention of the Court to the counter affidavit filed in WP No.2013 of 2000 and submitted that in 1987 for the first time 20% of total number of offices were reserved for BC citizens in furtherance of legislative policy of the State. While the number of offices to various categories can be decided with reference to the number of offices of Chairpersons in the State, the reservation was made with reference to largest percentage of population of the said category to the total population of the Municipality in the descending order. Though the population census of 1991 is available for SC., ST., and Women, the population figures for BCs., is not available with reference to 1991 census. Therefore, the BC population figures gathered by the BC Corporation during the survey from 1-1-1984 to 31-12-1986 were relied on as for the purpose of reservation to offices of Chairpersons in Municipal elections. A similar provision was also made in the rules taking into consideration the BC population figures gathered by the BC Corporation and projected to 1-3-1991 by the Bureau of Economics and Statistics. Such a method of determining the population figures is rational and a recognised one. This is not contrary to the dicta of the Full Bench of this Court in Satyanarayana Reddy case as the Court also directed to publish the figures, invite objections and then publish the final figures for the purpose of reservation. The Government issued G.O. Ms. No.34, dated 3-2-1995 indicating the guidelines to be followed by all the District Collectors in the matter of publication of final figures ofBC population. All the respective District Collectors concerning the various Municipalities insofar as these cases are concerned have published the final notifications in the District Gazette even before the elections were held in March, 1995. The same figures also form the basis for the purpose of reservation of offices of Chairpersons under the Chairperson Rules and for the purpose of reservation of wards/seats under the Ward Rules for elections in 2000 AD
43. The learned Advocate-General alternatively submitted that absence of census data or survey data does not preclude or prevent the Legislature of a State from making a law for reservation of offices and seats for backward class citizens. The Legislature cannot wait till census figures are published, as democracy cannot be kept in abeyance waiting for a demographic study.
As long as there is data gathered by the State Government from any or different sources and the same is relevant, the 'sufficiency or insufficiency' of such data is not justiciable before this Court. In matters of reservation and implementation of a policy of affirmative action, it is submitted that 'the rule of strict scrutiny' by the Court is out of place. The learned Advocate-General also relied on the various observations made by the Full Bench of this Court in Narayaiia Rao case, Satyanarayana Reddy case and Fakruddin case (supra) besides relying on various judgments of the Apex Court.
44. In rely to the submissions made by the learned Advocate-General, Sri E. Manohar, Sri Ella Reddy, Sri K.S. Murthy and Sri Raghunandana Rao and others would contend that the phrase "in any Court" appearing in Clause (a) of Article 243-/G of the Constitution should be taken to mean any other Court not including the High Court exercising the power of judicial review which is the 'basic feature' of the Constitution. In support of this, reliance is placed on Fakruddin case which dealt with the scope of Clause (b) of Article 243-O of Part IX of the Constitution which is in pari materia with clause (b) of Article 243-ZG of the Constitution. The learned Counsel also submit that when the Full Bench of this Court in Narayana Rao case (supra) found fault with the report of the Muralidhar Rao commission insofar as the same arrived at the backward class population figure at 52% and when the Full Bench in Satyanarayana Reddy case (supra) found the survey conducted by the BC Corporation defective, it is arbitrary and illegal to rely on the same for the purpose of reserving one-third of the total number of municipalities for backward classes. It is also the submission of Sri K.S. Murthy, learned Counsel for the Petitioner in Writ Petition No.I308 of 2000 that a reading of the Circular issued by the Commissioner & Director of Municipal Administration dated 20-1-2000 shows that as the ward-wise population figures for BC population are not available, the method of reservation by drawal of lots is adopted. This is discriminatory for the reason that for the purpose of reservation of SCs. and STs., the population Figures of the respective category were relied on but for reservation for BCs., method of lottery was followed.
Points for Consideration
45. Having regard to the various and varying rival contentions of the learned Counsel for the petitioners and the learned Advocate-General for the State, the following points arise for consideration in these cases:
I. Whether the writ petitions are not maintainable for the reason that there is an embargo as per Clause (a) of Article 243-ZG of the Constitution of India on the exercise of power by this Court under Article 226 of the Constitution ?
II. Whether Rule 9 of the A.P. Municipalities (Reservation of Offices of Chairpersons in Municipal Councils and Nagar Panchayats) Rules, 1995 is arbitrary, illegal and unconstitutional and Whether G.O. Ms. No.71 dated 5-2-2000 is illegal and arbitrary ?
III. Whether Rule 9 of the A.P. Municipalities (Reservation of seats in Municipal Councils and Nagar Panchayats) Rules, 1995 is arbitrary, illegal and unconstitutional ?
IV. Whether the policy of reservation of Offices of Chairpersons of the Municipalities and reservation of seats in Municipalities in favour of BCs., is unconstitutional for the reason that the 'creamy layer' among the backward class citizens is not excluded from the group ?
V. Whether the Nagar Panchayats, Municipalities and Municipal Corporations are to be treated as one unit for the purpose of elections as well as for the purpose of providing reservation under Article 243-T of the Constitution of India and whether Section 14-A of the A.P. Municipal Corporation Act, 1994 and Section 23 of the A.P. Municipalities Act, 1965 are ultra vires the provisions of Articles 243-P, 243-Q and 243-T of the Constitution?
VI. Whether the A.P. Municipal Corporations (Reservation of seats) Rules, 1995 and A.P. Municipal Corporations (Reservation of Offices of Mayors) Rules, 1995 have been validly made and promulgated and whether the Notification issued by the Government vide G.O. Ms. No.70 dated 5-2-2000 in exercise of powers under Section 14-A of the A.P. Municipal Corporation Act, 1994 read with Rule 3 of A.P. Municipal Corporation (Reservation of offices of Mayors) Rules, 1995 is validly issued and sustainable ?
VIII. To what relief?
In re point No, 1:
46. This point for consideration requires examination of the question whether the writ petitions are maintainable. Relying on clause (a) of Article 243-ZG and various decisions of the Supreme Court, the learned Advocate-General submits that the notification published vide G.O. Ms. No-71 dated 5-2-2000 is an exercise aimed at delimitation of constituencies and allotment of seats to such constituencies and, therefore, it squarely falls within the scope of Article 243-ZG of the Constitution. The submission made by the learned Counsel for the petitioners is that the embargo of clause (a) of Article 243-ZG does not apply to the High Court exercising jurisdiction under Article 226 of the Constitution as the power of judicial review under Article 226 is a 'basic feature' of the Constitution. Before examining the question whether the notification vide G.O. Ms. No.7l, dated 5-2-2000 issued by the Government is a notification dealing with delimitation of constituencies and allotment of seats, it is necessary to examine the relevant provisions of the Constitution and the various enactments.
47. Article 243-P contains definitions, which apply to Part IX-A of the Constitution as introduced by the Constitution (Seventy Fourth Amendment) Act, 1992. Clause (c), clause (d) and clause (e) of Article 243-P define 'metropolitan area', 'municipal area' and 'municipality'. 'Metropolitan area' means an area having population of 10 lakhs or more comprised in one or more districts and consisting of two or more municipalities or panchayats, specified by the Governor by public notification to be 'metropolitan area* for the purpose of Part 1XA of the Constitution. 'Municipal area' means the territorial area of a Municipality as notified by the Governor and 'municipality' means an institution of self-government constituted by the Government. A Municipality could be a Nagar Panchayat of semi-urban area, a municipal council for a small urban area and a municipal corporation for a larger urban area. The composition of municipalities is provided under Article 243-R. It says that seats of the territorial constituencies in a municipality known as wards, shall be filled up by direct election and the power is vested in the State Legislature by law to provide for various things under sub-clauses (a) and (b) of clause (2) of Article 243-R. Therefore, every municipality is divided into territorial constituencies known as wards. Every ward is allotted one seat. The voters in each ward are required to choose by direct election a person to represent the ward and fill up the seat allotted to the ward. As to how the seats are to be allotted, how they are to be filled up is left to be provided for by the Legislature under clause (2) of Article 243-R, clause (2) of Article 243S, clause (6) of Article 243-T and clause (2) of Article 243-ZG of the Constitution. Under clause (6) of Article 243-T, the Constitution makes very clear that nothing shall prevent the Legislature of a State from making any provision for reservation of seats in a Municipality or office of a Chairperson in a Municipality in favour of backward class persons. Therefore, the division of municipal area into territorial constituencies known as wards to which seats are allotted or reservation of such seats or offices of Chairpersons in municipalities is primarily a subject of 'delimitation and allotment of seats' referred to in Clause (a) of Article 243-ZG of the Constitution.
48. Further, the division of municipal area into wards/territorial constituencies or constitution and composition of Ward Committees or reservation of seats and Offices of Chairpersons are matters left to be provided by the Legislature of the State. The Act as well as the HMC Act, which is made applicable to various other municipal corporations in the State, contain such provisions. Those provisions in these statutes have also been amended to be brought in tune with various Articles of Part IX-A of the Constitution. Insofar as STs., and SCs., are concerned, clause (1) of Article 243-T provides for reservation of seats in every municipality and number of seats so reserved shall "as nearly as may be" in the same proportion to the total number of seats be filled up by direct election as the population of SCs., in municipal area or the STs., in the municipal area based to the total population of the area and the seats reserved for SCs., and STs., may be allotted by rotation to different constituencies in the Municipality. Clauses (2) and (3) of Article 243-T provides for reservation for Women to the extent of one-third of total number of seats including the number of seats reserved for SC (women) and ST (Women). Section 23 of the Act deals with election of Chairperson of Municipality. As per sub-section (1) of Section 23, a Chairperson shall be elected by the voters of the Municipality directly. Sub-clause (i) of clause (c) of sub-section (1) of Section 23 says that out of total number of offices of Chairpersons in the State, the Government, subject to such rules as may be made, by notification reserve such number of offices in proportion to their population as nearly as may be in favour of SCs. and STs. Sub-clause (ii) of clause (c) of sub-section (1) of Section 23 also provides that the Government shall reserve one-third of the offices of Chairpersons to backward classes and such reserved offices may be allotted by rotation to different municipalities. Section 23 also deals with the reservation of offices of Chairpersons and seats in favour of women.
49. Section 5 of the Municipalities Act says that the Municipal Council shall be constituted in each municipality and shall consist of such number of elected members as may be notified from time to time by the Government. Sub-section (1) of Section 10 of the said Act empowers the Government to divide the Municipality into as many as single member wards as the number of members notified under Section 5. The Governor of Andhra Pradesh in exercise of powers under sub-section (1) of Section 326 read with clause (a) of sub-section (1) of Section 10 of the Municipalities Act has made the Rules known as A.P. Municipalities (Division of Nagar Panchayats and Municipalities into Wards) Rules, 1994. These Rules provide for the procedure for division of the wards by the Government, which is the competent authority. For appreciating the contention of the learned Counsel for the petitioners, Sri E. Manohar and Sri K.S. Murthy that reservation of the offices of Chairpersons and reservation of wards/seats is not an exercise dealing with delimitation or constituencies and allotment of seats to such constituencies, it is usefiil to notice sub-sections (1) and (2) of Section 5 and sub-section (1) of Section 10 of the Act.
5. Constitution of Municipal Council:--
(1) There shall be constituted for each municipality a body of member to be called the Municipal Council having authority over the municipality.
(2) The council shall consist of the following members, namely:
(i) such number of elected members as may be notified from time to time by the Government in the Andhra Pradesh Gazette, in accordance with such principles as may be prescribed;
10. Division of Municipalities into wards etc., for the purpose of election of members :--
(1) For the purpose of election of members to a council, the Government may, after consulting the council, by notification in the Andhra Pradesh Gazette-
(a) Divide the municipality into as many as single member wards as the number of members notified under Section 5.
(b) Determine the wards in which seats, if any, reserved under subsection (1) of Section 8 shall be set apart; and
(c) Declare for whom such seats are reserved.
50. As per Section 8 of the Act, the Government shall reserve proportionate number of seats to SCs. and STs., as may be determined and such seats may be allotted by rotation to different wards in the Municipality (see Clause (a) ot subsection (1) of Section 8). Section 8(1)(b) says that the Government shall reserve one-third of total number of seats to backward classes and such seats may be allotted by rotation to different wards in the Municipality. A plain reading of the above provisions and Article 243-R of the Constitution leads to the following conclusions:
(a) Every municipality shall be divided into territorial constituencies known as wards;
(b) Every municipal council shall consist of such number of elected members as may be notified by the Government from time to time:
(c) For the purpose of election of members to Municipal Council, the Government by notification divides the municipality into as many single member wards as the number of members notified under Section 5.
(d) Every elected member representing the single member ward is treated as occupying a seat allotted to such ward in the municipal council;
(e) Therefore, reservation of seats of SCs., STs., BCs., and Woman and allotment of such seats by rotation to SCs., STs., BCs., and Women is an exercise dealing with division of wards as well as allotment of wards and is squarely covered by clause (a) of Article 243-ZG of the Constitution.
51. The above conclusions are further supported by a reference to the Chairperson Rules, Ward Rules as well as relevant rules for Municipal Corporations. Under Rule 3 of the Chairperson Rules, on the eve of ordinary elections to the Municipal Councils, the Government may by notification in the A.P. Gazette shall declare the number of offices of Chairpersons of Municipal Councils to be reserved in ihe State for SCs., STs., BCs., and Woman under Seclion 23 of the Act. Rules 4 to ! 1 of the said Rules lay down the guidelines and procedure to be adopted before issuing the notification under Rule 3. According to Rule 12 of the said Rules, the Government shall issue a notification setting apart reserved offices of Chairpersons among the municipalities in the State and publish the same in the A.P. Gazette. Similar corresponding rules of Ward Rules provide that after issuing a notification by the Government under clause (1) of subsection (2) of Section 5 of the Act, the Government or the 'authorities specified' shall declare by notification in the A.P. Gazette, number of seats reserved in each municipal council for STs., SCs., BCs., and Women under Section 8 of the Act. A reading of the Rules clinchingly shows that the reservation of seats and allotment of such reserved seats to STs., SCs., BCs., and Women is also an exercise relating to delimitation of constituencies and allotment of seats in such constituencies.
52. A reading of relevant Articles in Part IX-A of the Constitution, Sections in the Act and the Rules as well as corresponding provisions in the Corporations Act (see Sec. 14), Rule 3 of Corporation Mayor Rules and Rule 3 of the Corporation Ward Rules would show that the submission made by the learned Counsel for the petitioners is liable to be rejected.
53. As already seen, the provisions of Article 243-T of the Constitution of India, Sections 8 and 23 of the Act and the corresponding provisions of Corporation Act show that reservation to the offices of Chairpersons as well as reservation of seats is made by rotation, which involves a re-allocation/re-allotment of seats on the eve of each election in favour of reserved classes, which is an exercise in the direction of allotment of seats to re-constituted territorial municipal constituencies. Therefore, the submission made by the learned Advocate-General deserves to be countenanced by this Court. This view is further supported by the various judgments of the Supreme Court as well as this Court.
54. In N.P. Ponnuswatm v. Returning Officer, , a Constitution Bench of the Supreme Court, for the first time considered the effect of clause (b) of Article 329 on the exercise of power by tlie High Court under Article 226 of the Constitution. The appellant in the said case filed a nomination for election to the Madras Legislative Assembly from Namakkal Constituency in Salem District. After scrutiny, the Returning Officer rejected the nomination. Questioning the same, the appellant filed a petition under Article 226 of the Constitution in the High Court of Madras which dismissed the petition on the ground that by reason of the provisions of Article 329(b) of the Constitution, the High Court has no jurisdiction. Aggrieved by the same, the matter was carried to the Supreme Court. Before the Supreme Court, it was submitted that the language of Article 329(b) of the Constitution does not support the conclusion arrived at by the High Court and that in view of the starting anomalies that might ensue if jurisdiction of High Court is denied in election matters, a construction which favours the vesting of jurisdiction in the High Court be adopted. By a unanimous decision, the appeal was rejected. The Supreme Court held that Article 329(b) must be read as complementary to clause (a) of the Article which bars jurisdiction of the Court wild regard to such law as may be made under Articles 327 and 328 of the Constitution relating to the delimitation of the constituencies or allotment of seats to such constituencies. It was held as follows:
".,..,...If Part XV of the Constitution is the Code by itself i.e., it creates rights and provides for their enforcement of a special Tribunal to the exclusion of all Courts including High Courts, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections. The reasonable view seems to be that Article 329 covers all 'electoral matters',"
55. The Apex Court summed up the conclusion in Para sixteen of the judgment as under:
"(1) Having regard to the important functions which the Legislature have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with the principle, the scheme of election law in this country as well as England is that no significance should be attached to anything which does not affect the 'election', and if any irregularities are commilted while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special Tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress."
56. In Meghraj v. Delimitation Commission, , a Constitution Bench of the Supreme Court held that orders passed by the Delimitation Commission under the Delimitation Commission Act, 1962, cannot be challenged in a Court of Law in view of Article 329 (a) of the Constitution of India. A notification issued in pursuance of sub-section (1) of Section iO of the Delimitation Act in respect of delimitation of certain Parliamentary and Assembly constituencies was challenged before the High Court of Madhya Pradesh at Jabalpur. This petition was summarily dismissed. In the appeal before a Constitution Bench of the Supreme Court, the contention was that notification of the Commission is not law and, therefore, jurisdiction of the Court under Article 226 of the Constitution are not excluded. The acts of commission and omission on the part of the Commission in readjusting Ihe constituencies were also canvassed before the Court. While observing that every order made under Sections 8 and 9 of the Delimitation Commission Act after publication in the Gazette is law relating to the delimitation of constituencies or allotment of seats to such constituencies made under Article 327, the Supreme Court held that such a law (notification) cannot be made subject matter of controversy in any Court. The Supreme Court further observed as follows:
"Counsel for the appellant also drew our attention to the judgment of this Court in Sangram Singh v. Election Tribunal, Kolah, . There the Court had to consider the effect of Section 105 of the Representation of the People Act, 1951 (Act XLIII of 1951) which provided that 'every order of the Tribunal made under this Act shall be final and conclusive'. The contention there put forward was that this provision put an order of the Tribunal beyond question either by the High Court under Article 226 of the Constitution or by the Supreme Court in appeal therefrom. It was further submitted that the intention of the Legislature was that the decisions of the Tribunals were to be final on all matters whether of fact or of law, and they could not be said to commit an error of law when acting within the ambit of their jurisdiction. They decided what the law was. This submission was turned down by this Court and it was observed after referring to Hari Vishnu v. Ahmed Ishaqne, that 'the Court laid down in general terms that the jurisdiction under Article 226 having been conferred by the Constitution, limitations cannot be placed on it, except by the Constitution itself' In this case we are not faced with that difficulty because the Constitution itself provides under Article 329(a) that any law relating to the delimitation of constituencies etc., made or purporting to be made under Article 327 shall not be called in question in any Court. Therefore an order under Section 8 or 9 and published under Section 10(1) would not be saved merely because of the use of the expression 'shall not be called in question in any Court.' But if by the publication of the order in the Gazette of India it is to be treated as law made under Article 327, Article 329 would prevent any investigation by any Court of law."
57. Ultimately, the Hon'ble Supreme Court affirmed the view of the Madhya Pradesh High Court.
58. In Re Presidential Election, 1974, AIR 1974 SC 1682, the President of India, made a reference under Article 143 (1) of the Constitution for the opinion of the Supreme Court. The reference involved the examination of the principal question as to whether election to fill up vacancy caused on the expiry of term of office of President must be completed before the expiry of the term of the office notwithstanding the fact that the Legislative Assembly of the State of Gujarat is dissolved. Answering the question in the affirmative, the Supreme Court also adverted to the question whether for the purpose of readjustment of number of Gujarat State Assembly, the census of 1961 can be relied on whether the question of delimitation can be agitated in a constitutional Court. A Constitution Bench of seven Judges by a unanimous opinion rendered by the Hon'ble Chief Justice of India, Sri Justice A.N. Ray (as he then was) reject the contention of one of the political parties before the Court that unless a new exercise is undertaken as per the Delimitation Act, 1972 based on census of 1971, election cannot be conducted. The Court ruled as follows:
"When a notification under Section 8 of 1972 Act has been published by assigning 182 seats to the Gujarat Assembly which notification under Section 10(2) of the 1972 Act has the force of law and cannot be questioned in any Court, elections to these 182 seats cannot be held on the basis of the old electoral rolls because those electoral rolls applied only to the 168 seats as fixed under the old Delimitation Act."
59. In Re Presidential Election matter case (supra), the Supreme Court observed that the necessity for completing the election to the office of President before the expiration of the term is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed by non-compliance with the provision that there shall be President of India. The impossibility of completion of the election for any reason does not rob Article 62(1) of the Constitution of India of its mandatory character. It was further held that when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the person's interest had no control, the circumstances will be taken as a valid excuse. In laying down the principle, the apex Court relied on the maxim of law impotentia excusat legem, which is intimately connected with another maxim of law lex non cogit ad impossibilia and observed as follows :
"Impotentia excusat legem is that when there is a necessary of invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.'
60. In P. Mastanaiah v. Delimitation Commissioner, New Delhi, , a Division Bench of this Court held that when the Delimitation Commission constituted under the Delimitation Commission Act, 1962 has followed the procedure prescribed under the Act, particularly that referred to in Section 9(2) and determined the question of allotment of reserved seats after hearing public representations and objections, its act cannot be called in question in a Court of law. In Mastanaiah's case (supra), the appellant challenged the notification of the Delimitation Commission under Section 10 of the 1962 Act. Prior to the impugned notification, Gudur, Sulurpet and Venkatagiri, each had one reserved seat for Scheduled Castes. By the impugned notification, the Delimitation Commission, instead of assigning or allotting one reserved seat to Gudur, allotted the same to Sarvepalli, which had a general population of 1,33,140 and a Scheduled Caste population of 30,483 in comparison to the Scheduled Caste population of 32,481 out of general population of 1,27,566 in Gudur. A learned single Judge of this Court dismissed the writ petition. The main challenge was with regard to change in the allotment of reserved seat to Sarvepalli in preference to Gudur, which had a higher population of Scheduled Castes. The learned single Judge took the view that the notification under Section 10(2) of the Delimitation Act has force of law under Article 329 of the Constitution, which gives immunity to the delimitation law. The specific contention on behalf of the appellant was that the reservation of seats is not allotment of seats within the meaning of Article 329 of the Constitution and, therefore, the notification by the Commission can be called in question under Article 226 of the Constitution. Adverting to this question, this Court observed as follows :
"It is undisputable that when an Authority has been constituted under an Act, the provisions of which have not been challenged, and that Authority has followed the procedure prescribed, particularly that referred to under Section 9(2) of the said Act and having heard the public representations and objections, determined the question, its acts cannot be called in question unless it can be said that it has not taken into consideration the factors specified in Section 9 or its decisions are arbitrary."
61. Dealing with the contention of the appellant that Gudur with higher percentage of Scheduled Caste population should not have been deprived of having a reserved constituency in preference to Sarvepalli, the Division Bench held :--
"It will be observed that the language of Section 9(1)(c) itself shows that, as far as practicable, the proportion of their population to the total population could be taken into consideration. What is practicable in the circumstances is a matter which is within the jurisdiction of the Delimitation Commission with which are associated members of the Assembly. We cannot accept the contention that more higher percentage of Scheduled Castes in any constituency alone should be a guiding factor, which, if adopted, would be defeating the very object of the provisions of Section 9 of the said Act.... We do not think that it is within the purview of this Court to go into the questions of merit, the jurisdiction of which has been exclusively vested by the law in the Delimitation Commission."
62. In Basudev Khadanga v. Union of India, , a Division Bench of Orissa High Court was considering the challenge of reservation of Legislative Assembly constituency for Scheduled Castes. Relying on the judgments in N.P. Ponnuswami case (supra) and Meghraj case (supra), the Division Bench held that the validity of the reservation of Assembly constituency for Scheduled Castes is a dispute, which is barred under Article 329(a) of the Constitution and that the jurisdiction under Article 226 is also subject to the bar of Article 329.
63. In Pradhan Sangh Kshetra Samiti, Jabalpur v. State of U.P, AIR 1985 All. 162, a Division Bench of the Allahabad High Court declared certain provisions of U.P. Panchayat Raj Act, 1947 as amended by U.P. Act 9 of 1994 after coming into force of the Seventy-Third Constitution (Amendment) Act, 1992 as ultra vires Article 243-G and other provisions of the Constitution. Before the Division Bench of Allahabad High Court inter alia the issues that were urged are that the guidelines or circulars issued by the State Government for the establishment of Gram Panchayats have been violated; that Gram Panchayats have been reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and Women on the basis of alphabetical order contrary to the principle of rotation envisaged by the Constitution; that villages with more SC, ST population have been reserved for BCs; that the seats were not reserved in accordance with the proportion of population of reserved classes; that villages with negligible percentage of SC, ST, BC population were reserved and that the electoral list was not prepared in accordance with law etc. It was also contended before the Division Bench of Allahabad High Court that reservation of the posts of Pradhans of Panchayat members in favour of BCs., was made though there was no relevant information regarding the population figures available with the State Government. This was pointed out by the Allahabad High Court and a reading of Paragraph 135 of the judgment shows that the Court indicated that unless the BC population figures collected by the Government are verified by a open debate on the floor of the Legislature or by the State Election Commissioner, the same cannot be basis for making reservation for BCs. The State of U.P. was, therefore, compelled to cancel the election notification, but the State carried the matter in appeal before the Supreme Court, which reversed the judgment of Allahabad High Court.
64. In State of U.P. v. Pradhan Sangh Kshelra Samiti, , the Supreme Court reversed the judgment of Allahabad High Court. The Supreme Court held that constitution of village Panchayats, division of Panchayat area into wards, allotment of seats etc., relates to delimitation of constituencies and allotment of seats to such constituencies and in view of the provisions of clause (a) of Article 243-O of the Constitution (Part IX as amended by Seventy-Third Amendment Act) and, therefore, the High Court's approach in adjudicating the issues regarding reservation in favour of SCs., STs. and BCs., is objectionable. The Supreme Court held:
"What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the Courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any Panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them."
65. The Supreme Court then referred in detail to Meghraj case (supra) and further held as follows :
"If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of scats to the constituencies could have been challenged nor the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1994."
66. In Anugrah Narain Singh v. State of U.P., , the Bench comprising their Lordships Hon'ble Sri Justice B.P. Jeevan Reddy and Hon'ble Sri Justice Suhas C. Sen considered the question of maintainability of writ petition under Article 226 having regard to the provisions of Article 243-ZG. In that case, the election notification dated 11-10-1995 issued by the State of U.P. was challenged before the Allahabad High Court. The Lucknow Bench of the Allahabad High Court dismissed the writ petition on the ground that in view of the bar imposed by Article 243-ZG of the Constitution, the writ jurisdiction of the Court could not be invoked to stall the election process. Another case was filed on similar grounds and another Division Bench of Allahabad High Court took a contrary view and directed that elections should not be held according to the schedule. Before the High Court, 'basically, the challenged appears to be about reservation of seals in favour of SCs., STs. and BCs., in the municipal areas. The Supreme Court considered the question whether a writ petition is maintainable after the issue of election notification. The Court also considered the question whether delimitation of wards in municipalities and allotment of such wards to SCs., STs. and BCs., cannot be challenged in view of clause (a) of Article 243-ZG. Relying on the judgment in Uzzaman case (supra), the question qua clause (b) of Article 243-ZG was answered as follows :
"The answer must be emphatically in the affirmative. The bar imposed by Article 243-G is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZG cannot be questioned in any Court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections....."
67. Dealing with the question of reservation of wards for SCs., STs. and BCs., the Supreme Court held that a law providing for such delimitation and reservation of seats is a law made under clause (6) of Article 243-T of the Constitution and further held as follows:
"Moreover, the U.P. Act of 1959 was amended to make it consistent with the provisions of Part IX-A of the Constitution. 'Population' was defined in Section 2(53-A) to mean 'populations ascertained at the last preceding census of which the relevant figures have been published'. This is identical to the definition given in Article 243-P(g). Section 32 which deals with delimitation, inter alia, provides that the State Government shall by order determine the number of seats to be reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and for women. Section 7 lays down that in every Corporation, seats shall be reserved for Scheduled Castes, Scheduled Tribes and Backward Classes. There is second proviso to Section 7 which lays down that the figures of Backward Classes are not available, their population may be determined by carrying out a survey in the manner prescribed by the Rules. These provisions come within the ambit of the phrase 'any law relating to the delimitation of the constituencies d allotment of seats to such constituencies'. The validity of this law cannot be challenged because of the protection given by Article 243ZG of the Constitution. Therefore, the question whether the survey made by the State Government to ascertain the figures of persons belonging to Backward Classes was lawful or not cannot be raised in any Court."
68. The learned Counsel for the petitioners place reliance on the judgment of the Full Bench of five Judges of this Court in Fakruddin case (supra). The Full Bench held that 'notwithstanding the bar as to jurisdiction of Court in regard to Panchayat elections that bar is to the ordinary jurisdiction of the Courts and not to the extraordinary jurisdiction under Article 226 of Constitution and Article 243-O (of Part IX of the Constitution) simply does not take away the power of High Court under Article 226, but as respects challenge to the election or any intermediary stage in case there is an alternative, effective and independent mechanism is available, the High Court shall abstain to interfere except on jurisdictional errors. Fakruddin case (supra) also pointed out that the jurisdictional infirmity and error as including violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. The learned Advocate-General has read out the order dated 8-4-1997 in Civil Appeal Nos.9345-9380 of 1995 (against the judgement of the Full Bench in Fakruddin case) and would submit that in view of the order of the Supreme Court, the judgment of the Full Bench does not preclude this Court again to examine the contentions of the Government regarding the bar of jurisdiction under Article 226 in the light of the specific judgment of the Supreme Court dealing with Article 243-O(a) of Part IX of the Constitution. The order of the Supreme Court is as follows:
"It is agreed that the elections are over. The results have been declared. The successful candidates have taken the oath of office. In view of the subsequent event it is not proper for this Court to consider the matters in detail at this stage. It is open to the aggrieved parties, if so advised, to take appropriate proceedings before appropriate forum wherein all the questions raised herein can be raised. If any proceedings are initiated, the appropriate forum will decide the matter as expeditiously as possible unfettered by the judgment of the High Court. The appeals are dismissed accordingly."
69. Admittedly, the Government of Andhra Pradesh was a party before the Supreme Court in Civil Appeal Nos.9345-9380 of 1995 and, therefore, there is acceptable force in the submission made by the learned Advocate-General that this Court is entitled to examine the issue 'unfettered' by the judgment of the Full Bench in Fakruddin case (supra). In Fakruddin case (supra), this Court relied on Lakshmi Charan Sen v. A.K.M. Nassau Uzzaman, AIR 1985 SC 1233. The case before the Supreme Court was one touching upon clause (b) of Article 329 of the Constitution. Needless to point out that Article 329(a) and (b) are in pari materia with the provisions of Article 243-O(a) and (b) and Article 243-ZG(a) and (b). Indeed, in my considered opinion, Fakruddin case (supra) concerns more with clause (b) of Article 243-O which only shows that an election to Panchayat shall not be called in question before this Court except by way of election petition. The context of the situation in which Article 243-O(a) or Article 243-ZG (a) or Article 329(a) operate are different.
70. In Hassan Uzzaman case (supra), the Supreme Court was dealing with the question whether preparation and publication of electoral rolls is within the scope of the expression 'election' which occurs in clause (b) of Article 329 of the Constitution. The contention canvassed was that the High Court had no jurisdiction to entertain the writ petition by reason of Article 329(b) and that the election process which had already begun should not have been interfered with by the High Court. Even if the claims and objections by prospective voters are not finally disposed of which might be in contravention of the law, still the election process cannot be arrested and has to be held on the basis of electoral roll which is in force on the last date for making nominations. In paragraph 24 of the majority judgment, the law declared by the Supreme Court is as follows :
".....In the light of the conclusion recorded by us that the petitioners have not made out any case for the grant of relief claimed by them, it is unnecessary for us to decide the question whether the expression 'election' which occurs in Article 329(b) comprehends the preparation and publication of electoral rolls. Besides as indicated by us in the order dated March 30, 1982, the view which we took was that though the High Court was justified in entertaining the writ petition and issuing a rule therein since, the writ petition apparently contained a challenge to several provisions of Election Laws, it was not justified in passing any order which would have the effect of postponing the elections which were then imminent .....
Very often, the exercise of jurisdiction, especially the writ jurisdiction, involves questions of propriety rather than of power. The fact that the Court has the power to do a certain thing does not mean that it must exercise the power regardless of the consequences..."
71. I have already extracted the relevant observations of the Constitution Bench of the Supreme Court in Meghraj case and Ponnuswami case (supra) which interpreted the scope of Article 329(a) and Article 329(b) respectively with reference to the jurisdiction of this Court under Article 226 of the Constitution. I have also referred to the two judgments of the Supreme Court after coming into force of the Constitution (Seventy Third Amendment) Act, 1992 and the Constitution (Seventy Fourth Amendment) Act, 1992 in Pradhan Sangh Kshetra case (supra), which also arose under clause (a) of Article 243-O and Anugrah Narain Singh case (supra) dealt with Article 243-ZG(a). The Apex Court categorically held that the delimitation of constituencies and allotment of seats to Panchayats and Municipalities is a matter falling under clause (a) of Article 243-O and clauses (a) of Article 243-ZG respectively, and, therefore, the notification of allotment of seats as well as the law providing for the same cannot be challenged nor this Court can entertain such challenge except on the ground that before the delimitation no objections were invited and hearing was given. In Masthanaiah case (supra), the Division Bench of this Court held that a notification of delimitation of constituencies cannot be called in question by reason of clause (a) of Article 329 of the Constitution unless it is shown that the competent authority issuing the delimitation notification has not taken into consideration the factors mentioned in the relevant provision of law or such decision is arbitrary.
72. In the light of the decided cases, the principles that emerge may be summarised.
(i) by reason of clause (a) of Article 243-ZG, the Division of Municipality into territorial constituencies called wards or allotment of seats to such wards or the notification specifying the offices of Chairpersons of Municipalities reserved to persons belonging to STs., SCs., and/or BCs., cannot ordinarily be challenged under Article 226 of the Constitution.
(ii) In view of the embargo placed by clause (a) of Article 243-ZG, a law providing for delimitation of constituencies and allotment of seats to such constituencies made by the State Legislature under clause (6) of Article 243-T read with clause (2) of Article 243-ZA and the Entry 5 of List II of Seventh Schedule to the Constitution cannot be called in question under Article 226 of the Constitution.
(iii) The principles (i) and (ii) are subject to the condition mat if the delimitation notification is arbitrary and in the sense that before delimitation no objections were invited and no hearing was given to a limited extent, the same is amenable to judicial review by this Court under Article 226 of the Constitution.
Point No.1 is answered accordingly.
In re Point No. II:
73. In Writ Petition No.2013 of 2000 and other writ petitions, Rule 9 of the Chairperson Rules is challenged on the ground that the same is arbitrary and contrary to the judgment of the Full Bench in Satyanarayana Reddy case and Fakruddin case (supra). Rule 9 of the Chairperson Rules reads as follows :
"9. For the purpose of reserving the offices of Chairperson to the members belonging to Backward Classes, the population figures of the Backward Classes, gathered in the socio-economic survey conducted by the A.P. BC Cooperative Finance Corporation Ltd., duly projected to 1-3-1991 shall be taken as basis."
74. The submission made by the learned senior Counsel Sri E. Manohar and Sri E. Ella Reddy which are adopted by all the learned Counsel is that the Full bench in Satyanarayana Reddy case and Fakruddin case (supra) found figures gathered in the socio-economic survey conducted by the BC Corporation to be defective and, therefore, relying on the same figures again is illegal and arbitrary violating the equal protection clause in Article 14 of the Constitution. Though in some of the writ petitions, the method of reserving and allotting the offices of Chairpersons by rotation to different Municipalities is also challenged, only a feeble attempt is made to substantiate the submission. Therefore, under Point No.II what is required is to be considered is whether the reliance admittedly placed by the Government on the figures gathered by the BC Corporation for the purpose of reserving the offices of Chairpersons to the members belonging to backward classes is valid and sustainable ?
75. In the counter affidavit, it is stated that for the purpose of reservation for the offices of Chairpersons as well as wards for STs., SCs., and Women, 'population' has been considered as contemplated by clause (27a) of Section 2 (definition clause) of the Act. The said clause says that 'population' or population at the last census 'with all its grammatical variations and cognate expressions means the population as ascertained at the last census of which all the relevant and necessary figures have been published. It is not seriously disputed that the population figures of STs., SCs. and Woman have been duly published during the last census. It is also admitted by the Government as well as the petitioners that the population figures for backward classes for the State, for the local bodies and for different wards in the local bodies are not available, nor published by the Department of Census, Government of India. During the period from 1-1-1984 to 31-12-1986, the population figures of backward class citizens of the State were gathered through socio economic survey conducted by the BC Corporation. The figures arrived at by Muralidhar Rao's BC Commission 1971 though available, they were held to be unreliable, it is alleged by the petitioners, by a Full Bench of this Court in Narayana Rao case (supra). Be that as it may, both the sides agree that the socio economic survey of backward class citizens conducted by the BC Corporation and the population figures gathered by the said Corporation were subject matter of scrutiny before another Full Bench of this Court in Satyanarayana Reddy case (supra).
76. The submission of the learned Counsel for the petitioners as noticed earlier is that the two learned Judges of the Full Bench (another learned Judge is Justice A. Raghuvir, J.,) Hon'ble Sri Justice B.P. Jeevan Reddy and Hon'ble Sri Justice M. Jagannadha Rao, JJ., (as Their Lordships then were) categorically found the survey by the BC Corporation as well as the figures furnished by them as defective. Therefore, the impugned Rule 9, which empowers the Government under Rule 3 to declare by notification number of offices reserved for Chairpersons in Municipal Councils based on the figures gathered by the BC Corporation, is illegal and arbitrary.
77. The learned Advocate-General refutes this. It is his submission that the criticism of Rule 3 read with Rule 9 is misplaced. According to the learned Advocate-General, the Full Bench in Satyanarayana Reddy case (supra), has specifically directed that in case (and if) the Government desires to rely on the figures gathered by the BC Corporation, the Government can do so only after publishing the figures, inviting objections and after publishing the final figures in the official gazette. According to the learned Advocate-General, in accordance with the directions of the Full Bench of the Government issued G.O. Ms. No.34 dated 3-2-1995 laying down the guidelines to be followed by the District Collectors for publishing the final figures of BC Corporation as gathered by the BC Corporation. The learned Advocate-General has also produced relevant District Gazette notifications published by the respective District Collectors in support of the submission that the procedure is followed. He submits that when the policy of the Government is based on the subjective satisfaction and the relevant available data, the same cannot be subjected to 'strict scrutiny' by the Courts on the touchstone of the 'equal protection of laws' in Article 14 of the Constitution. Before adverting to these rival submissions, it is necessary and essential to refer to the relevant conclusions as well as observations of the three Full Bench Judgments in Narayana Rao case, Satyanarayana Reddy case and Fakruddin case (supra).
78. In Narayana Rao case (supra), the validity of G.O. Ms. Nos.166, 167 and 168 dated 15-7-1986 issued by the Government of Andhra Pradesh was challenged. These Government orders were admittedly issued based on the recommendations of Muralidhar Rao Commission (MR Commission) which was constituted inter alia to review A.P. Backward Class Commission Report, 1970 (Anantharaman's Commission) for the purpose of Article 15(4) and Article 16(4) of the Constitution. Before the Full Bench comprising their Lordships, Jeevan Reddy, K. Ramaswamy and Anjaneyulu, JJ., (as their Lordships then were), no specific attack was made on G.O. Ms. No. 167 enhancing the reservations in favour of STs., and SCs., from 4% to 6% and 6% to 15% respectively. The attack was directed against the validity of G.O. Ms. No.166 dated 15-7-1986, which inter alia provided for 6%, 5% and 44% reservations in favour of STs, SCs and BCs respectively. One of the grounds raised was that the MR Commission did not make a full investigation while fixing the backward class population at 52%, that the Commission did not gather any real figures and determined the figure based on the estimates contrary to the estimate made by the Anantharaman Commission at 34%. But it was accepted that the estimate of the BC population figures at 34% arrived at by Anantharaman Commission is valid estimate. Be that as it may, the report on 'sample socio economic census 1981-82' published by Bureau of Economics and Statistics in June, 1986 was pressed into service by the respondents to sustain the validity of the conclusion of MR Commission in fixing the population of BCs., at 44.85%. His Lordship, Justice B.P. Jeevan Reddy, who delivered the unanimous judgment of the Full Bench after referring to the report, observed in Para 65 (of AIR) that it is not possible to treat the said report as the basis for holding the population of backward classes at 44.8% of the total population and further observed that since MR Commission determined the population of BCs., at 52% and recommended for raising the extent of reservation of BCs, from 25% to 44% based on the determination of BC population at 52% the same must be held to be arbitrary and unreasonable being violative of Articles 15 and 16 of the Constitution. The observations made by the Full Bench in Para 66 are apposite in the context of these cases. The observations are as follows :
".....we are inclined to say, on the basis of the material placed before us by all the parties including the Government, that the estimates of BC population as mentioned in the table in the para appear to approximate to the true position. The figure ranges between 33.5% (Anantaraman Commission) and 37.61% (as per 1971 census figures). The mean figure and the figure arrived at as per 1981 census tally. Since this material was available with the Government while issuing the G.Os., the said figures could perhaps have been taken into consideration while fixing the quota of reservation for Backward Classes instead of the totally unrealistic figure of 52%. It is open to the Government to do this exercise even now and determine the extent of reservation in favour of backward classes taking into account the population as determined."
79. The Full Bench declared clauses 13, 14, 15 and 18 of G.O. Ms. No.166 dated 15-7-1986 insofar as they raise the extent of reservation of BCs., from 25% to 44% as arbitrary and unreasonable and violative of Articles 15 and 16 of the Constitution. However, the Bench made it clear that striking down of the offending clauses in the impugned G.O., does not take away or affect the continued efficacy of the earlier reservation in G.O. Ms. No. 1793 as extended by G.O. Ms. No.136 dated 21-8-1979. Therefore, though the BC Corporation survey figures were not accepted, in toto, this Court gave liberty to the Government to take the mean figure as per 1971 census and as per the Figure arrived at as per 1981 census based on the available material with the Government and fix the appropriate quota of reservation for backward classes. The power of the Government to resort to the method of projecting the BC population figures based on the 'statistical method' has been specifically upheld and accepted to by this Court. Indeed, the report of Mandal Commission, 1980 (which was in a way subject matter of Indira Sawhney case) in Chapter XII of the report in Para 12.22 estimated OBC population at 52% , which is 'derived' figure. This 'derived figure' was not found to be incorrect by the Hon'ble Supreme Court.
80. In Satyanarayan Reddy case (supra) the Full Bench comprised of their Lordships Raghuvir, Jeevan Reddy and M. Jagannadha Rao, JJ., (as their Lordships then were). The three learned Judges delivered three separate judgments. In this case, inter alia, the constitutional validity of Explanation II of sub-section (2) of Section 5 of the A.P. Mandala Praja Parishads, Zilla Praja Parishads and Zilla Pranalika Abhiivrudhi Mandals Act, 1986 was also challenged. The impugned provision was as follows :
"Explanation II (to sub-section (2) of Section 5): For the removal of the doubts, it is hereby declared that, for reserving the office of President to members belonging to Backward Classes, the population figures of the backward classes gathered in the socio-economic survey conducted by the A.P. Backward Classes Co-operative Finance Corporation Limited, Hyderabad, shall be taken as the basis."
81. Their Lordships, Sri Justice Jeevan Reddy and Sri Justice Jagannadha Rao, did not strike down the said provision as being unconstitutional. His Lordship Justice Jagannadha Rao found that the figures determined by the B.C. Corporation are not without defects. However, His Lordship did not feel inclined to hold that the reservation of 20% for backward classes for identified reserved mandals as per the provisions of Sections 5 and 44 of the above Act is invalid. The reasoning by His Lordship is as under:
"Infact as pointed out by the learned Advocate-General, it has not been established by the petitioners that the said percentage of Backward Classes would be less than 20% as adopted in Sections 5 and 44 of the Act. Even assuming that the State average of 38.04% of Backward Classes arrived at by the Corporation or of 40.18% for Mandals arrived at by the Corporation are not correct still, I am of the view that the learned Advocate-General is right in contending that there is no warrant for holding that the reservation of 20% for backward classes is arbitrary. It has not been established and for that matter it has not been argued that the State average of backward classes in the area covered by the Mandals is below 20%."
82. The learned Judge, however, permitted the State Government to rely on the figures made available by the BC Corporation after following certain procedure, which is indicated in Para 79 as under:
"....If however, this survey is sought to be made the basis for any other election hereafter, it shall not be so used unless it is published first, copies of the Backward Classes figures village-wise are made available for scrutiny and, if necessary, for purchase, and objections heard, and final figures are once again published and made available for scrutiny, and if necessary, for purchase."
83. Relying on the Constitution Bench judgment in Harla v. State of Rajasthan, AIR 1951 SC 647, His Lordship also observed that publication does not only mean in the Gazette but also includes all other manners of publication viz., keeping the data open to inspection and scrutiny or making them available for sale.
84. His Lordship Sri Justice B.P. Jeevan Reddy, agreed with Hon'ble Sri Justice M. Jagannadha Rao and in Para 35 held as under:
"...I agree with the opinion of my learned brother, Jagannadha Rao, J, wherein he has elaborately dealt with this question. I agree with him that though the survey conducted by the Corporation is defective in several particulars and cannot be taken as disclosing a correct picture or correct population figures of Backward Classes in the total population of the State, interference is not called for in the particular circumstances of this case... For the above reason, and also because this report is being relied upon only for a limited purpose, we do not think it would be proper to set aside the entire election process throughout the State on this ground. If however, this survey is sought to be made basis for any other election hereafter, it shall be used unless it is published first, objections invited, considered and after necessary enquiry, if any published finally...''''
85. In Fakruddin case, the Full Bench referred to Satyanarayana Reddy case (supra) and indicated that placing reliance on the population figures determined by the BC Corporation for backward classes for the purpose of reservation of wards as well as offices of Chairpersons is not totally illegal when the Full Bench laid down as hereunder:
"....In a Full Bench judgment of this Court in Satyanarayana Reddy v. State of A.P. (1987 (1) ALT 665), while holding that the figures which formed the basis to identify the constituencies or wards for reservation were not correct, the Court held that the schedule elections should not be interfered with but direction should be given so that mistakes are not repeated in future elections. We can adopt this as a method in so far as reservation of the ward for backward class candidates as well as for the office of Chairpersons are concerned, but adoption of such a method for the other infirmities which we have noticed may not be justifiable."
86. Therefore, a reading of the findings/ conclusions/observations in Para 66 of Narayana Rao case, Paras 35, 71, 72, 76 and 79 of Satyanarayana Reddy case, and Para 28 of Fakruddin case do not support the submission of the learned Counsel for the petitioners that Rule 9 of the Chairperson Rules is arbitrary and unreasonable. In fact, Rule 9 now provides that the B.C. population figures gathered by the 'B.C. Corporation duly projected to 1-3-1991' shall alone be taken as basis, which compels me to conclude that such a method cannot be said to be arbitrary or illegal.
87. I directed the learned Government Pleader to produce the Notifications published in various District Gazettes in various districts to find out whether the procedure contemplated in G.O. Ms. No.34 dated 3-2-1995 for publishing the draft figures and publishing the final figures in the Gazette notification has been followed or not. The learned Government Pleader has produced the relevant notifications published by the District Collectors. It is convenient to indicate these particulars in a tabular column.
WP No. Municipality Publication in the Local News-papers Office Collector/Mpl.
Notification in the DistrictGazette/ Offices in the District 955/2000 Jaggaiahpet 6-2-1995 10-2-1995 1308/2000 Gudivada 6-2-1995 10-2-1995 1720/2000 Gajuwaka 6-2-1995 10-2-1995 1992/2000 Vikarabad 6-2-1995 10-2-1995 2013/2000 Tadepaligudem 6-2-1995 10-2-1995 2014/2000 Kakinada 6-2-1995 18-2-1995 2039/2000 Vijayawada MC 6-2-1995 10-2-1995 2043/2000 Vijayawada MC 6-2-1995 10-2-1995 2077/2000 Palacole 6-2-1995 10-2-1995 2031/2000 Anantapur 6-2-1995 10-2-1995 2126/2000 Vikarabad 6-2-1995 10-2-1995 2127/2000 Kadiri 6-2-1995 10-2-1995 2208/2000 Mandapeta 6-2-1995 10-2-1995 2214/2000 Gudur 6-2-1995 10-2-1995
88. In all the counter-affidavits filed on behalf of the Government of Andhra Pradesh the details of these Gazette notifications and the procedure adopted by the District Collectors has been stated. No reply affidavit is filed by any of the petitioners. Therefore, besides the presumption that all Government Acts are done validly in accordance with the procedure and law and also in view of the various District Gazette notifications, the submission made by the learned Advocate-General, has to be accepted that the Government has followed the directions issued by the Full Bench in Satyanarayana Reddy case (supra) while arriving at the figures of BC population as projected to 1-3-1991 which are the basis for issuing the impugned notification in G.O. Ms. No.71 dated 5-2-2000.
89. The next aspect of the matter is that whether this Court in a matter where the policy of affirmative action is called in question may apply the rule of 'strict scrutiny'. The learned Senior Counsel Sri E. Manohar would contend that without any independent survey, any reservation made based on the figures gathered by the BC Corporation, which were held to be ineffective and defective, would be incorrect and results in arbitrariness. It is the submission of the learned Advocate-General that absence of data does not preclude the Legislature from providing for reservation for backward class citizens and others and the Legislature cannot wait till census figures are made available and for that reason democracy cannot be kept in abeyance. It is his submission that polity should be allowed to function effectively giving everybody a chance to share the power in a democratic set up. In a matter like this, some data that is relevant is sufficient for the Government to reserve one-third out of the total number of Offices of Chairpersons as well as wards in the Municipalities in favour of STs., SCs. and Backward Classes, which the State Legislature has done.
90. The Constitution contemplates 'proportional' representation for members belonging to SCs., and STs., in political bodies. (See Articles 15(4), 38, 243-D(1), 243-T(1), 330 and 332). Constitution presumes that these groups suffer from 'lingering effects of past discrimination', that they should be brought up by a policy of affirmative action in their favour and lhat they are, by very social, economic and political conditions under which they live, backward. Therefore, the SC and ST population in so far as educational admissions and public employment is concerned; the emphasis in the Constitution is adequate representation. In the matter of reservation for political bodies - House of People, State Legislature or local bodies at rural and urban level - is concerned, the emphasis in the Constitution is proportional representation. However, the language in Articles 243-D, 243-T, 330 and 332 is couched in such a way that the proportional representation is "as nearly as may be" in the same proportion to the total number ofseats allotted. Hence, it is useful to extract clause (1) of Article 243-T of the Constitution.
243-T. Reservation of Seats.--(1) Seats shall be reserved for the Scheduled Castes and Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats maybe allotted by rotation to different constituencies in a Municipality.
91. There is no serious challenge to the method of reservation for SCs. and STs., in every Municipality and number of seats reserved in municipal area and also the method of allotment of seats to these classes by rotation of different constituencies in a municipality. It is, however, submitted by the learned Counsel, Sri. K.S. Murthy that the Rule, which provides for arranging of the municipalities population percentage-
wise and reserving municipalities in the descending order is arbitrary. This issue is common to both the reservation for SC/ ST on one hand and the BCs., on the other. Be that as it may, it is necessary to add that a reading of the various provisions of the Constitution and various enactments shows that for the purpose of proportional reservation and allotment of seats to SCs. and STs., the State is bound to consider the entire State as a unit. After determining the number of offices of Chairpersons to be allotted to SCs., and STs., they are allotted the respective municipalities by following the method as indicated in Rule 8 of the Chairperson rules as well as Rule 8 of the Ward Reservation Rules read with clause (1) of Article 243-T of the Constitution.
92. For further examining the issue, it is but essential to refer to the most relevant judgments of various Courts touching upon the subject. Is it the rule of 'strict scrutiny' that is applied when the policy of reservations is questioned as violating 'equal protection clause' or is it sufficient to leave the matter in deference to the opinion of the State as being opinion taken after 'subjective satisfaction' based on relevant data from any source? In this context, I may refer to two leading authorities of US Supreme Court and two latest authorities of our Supreme Court.
93. In Defunis v. Charles Odegard, (1974) 40 La Ed 2d 164, the question was the constitutionality of an admission policy of University of Washington where under certain percentage of seats in Law School were reserved for minority vacancies. The Trial Court held the admission policy as violative of 'equal protection clause' in Fourteenth Amendment and the Supreme Court of Washington reversed the same. The U.S. Supreme Court (Douglas, J) upheld the Special Admission Programme. What is important is that the US Supreme Court in this judgment referred to the judicial policy of 'strict scrutiny' in matters of 'equal protection clause'. So to say, any programme employing 'rational classification' to favour certain minority groups would be subject to strict scrutiny by the constitutional Court under 'equal protection clause'.
94. Public Works Employment Act, 1977 (of USA) provided that 10% of the federal funds granted for local projects must be used by the State or the local grantee to procure the services of Minority Business Enterprises (MBEs) set up by Negroes, Spanish-speaking, Orientals etc. The challenge to the provisions by the Associations of Contractors was repelled by the District Court as well as the Court of Appeals. The US Supreme Court in Fullilove v. Philip M. Klutznick, (1980) 63 Law Ed 2d 902, by a majority of 6:3 held that constitutional objectives required assuring minority business participation in Government contracts and that such legislative policy is permissible. The Court, however, added that 'doubts' must be resolved in support of the congressional judgment that this limited programme is a necessary step to effectuate the constitutional mandate for equality of economic opportunity. Thus, in this judgment also, the US Supreme Court propounded the theory of 'strict scrutiny' by the Courts in matters of 'equal protection clause'.
95. The view of 'strict scrutiny' by the Courts in matters of reservation/special programmes was, however, ignored by the US Supreme Court in Metro Broadcasting Inc. v. Federal Communications Commission, (1990) 111 La Ed 445, In United States in the business of establishing Radio and TV Broadcasting stations just 2.11% of minority groups owned such business. The Federal Communications Commission, a body vested with exclusive authority to grant licenses for radio and TV broadcasting under the Communications Act, 1934 considered the fact that in 1986 only 2.1% minority groups own radio and TV business and, therefore, proposed to provide a preference to minority groups in the matter of evaluation of applications. The Commission also proposed to compel the existing licensee who incurred disqualifications to transfer the radio and TV licenses to a member of minority so as to escape the wrath of disqualification. The Metro Broadcasting Corporation Inc. questioned the same and ultimately the case reached the US Supreme Court. The conclusions of the US Supreme Court as summarised with approval in Indra Sawhney case (supra) (in Para 51) compel excerption:
"...The decision of the Majority (Brennan, White, Marshall, Blackmum and Stevens, JJ) rendered by Brennan, J., is noteworthy or the shift of approach from the earlier decisions. It is now held that a classification based on race (benign race conscious measures) is constitutionally permissible even if it is not designed to compensate victims of past Governmental or societal discrimination so long as it serves important Governmental objectives and is substantially related to achievement of those objectives. In other words, it is held that it is not necessary that the Court apply a strict standard of scrutiny to evaluate racial classification to ascertain whether it is necessary for achieving the relevant objective and further whether it is narrowly tailored to achieve a compelling state interest. Brennan, J. relied upon the opinion of the Chief Justice Burger in Fullilove (1980) 65 Law Ed. 2d 902), for this liberal approach....''''
96. In Indra Sawhney case, (supra), a Constitution Bench of the Supreme Court consisting of nine Judges, after analysing Mandal Commission Report, as already mentioned by me, accepted the finding of the Mandal Commission that excluding Scheduled Castes and Scheduled Tribes, and forward communities, other Backward Classes (OBCs) constitute 52% of the Indian population. In paragraph 26 of the majority judgment, inter alia, the question as to what extent can the reservation be made? (Question No. 6) was also framed for consideration. On this question, His Lordship Hon'ble Sri Justice B. P. Jeevan Reddy ruled that reservation for Scheduled Castes, Scheduled Tribes and Backward Classes should not ordinarily exceed 50%. In Para 89 of the judgment, the Supreme Court considered the question of adequacy of representation (Question No.3) - How to assess the 'adequacy of representation?' It is useful to quote the principle laid down by the Apex Court touching upon this subject:
"Not only should a class be a backward class for meriting reservations, it should also be inadequately represented in the services under the State. The language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words 'in the opinion of the State'. This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the Court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether."
97. In Indra Sawhney v. Union of India, , the Division Bench of the Supreme Court followed the above dicta and indicated that the scope of judicial scrutiny with regard to matters relating to subjective satisfaction are governed by principles stated in Barium Chemicals Ltd v. Company Law Board, .
98. In view of the judgment of the Supreme Court in Indra Sawhney First case (supra) as well as Indra Sawhney Second case (supra), I have to hold that the rule of 'strict scrutiny' is not applicable. Further, the State is entitled to form an opinion on the basis of material it has and such an opinion related to 'subjective satisfaction' of the Government. In such a context, the question whether the material available with the decision making authority is sufficient or insufficient or adequate or inadequate are matters which are not justiciable as held by the Constitution Bench of the Supreme Court in Barium Chemical case (supra). The relevant passage in the said case reads-
"The opinion must necessarily concern the existence or non-existence of facts suggesting the things..... To say that the opinion to be formed must be as to the necessity of making investigation would be making a clear departure from the language in which Section 237(b) is couched. It is only after the formation of certain opinion by the Board that the stage for exercising the discretion conferred by the provision is reached....
The scope of judicial review of the action of the Board must, therefore, be strictly limited. Now if it can be shown that the Board had, in fact, not formed an opinion, its order could be successfully challenged. This is what was said by the Federal Court in Emperor v. Shibnath Banerjee, 1994-6 FCR 1 = AIR 1943 FC 75 and approved later by the Privy Council. Quite obviously, there is a difference between, not forming an opinion at all, and forming an opinion upon grounds, which, if a Court could not go into that question at all, could be regarded as inapt or insufficient or irrelevant. It is not disputed that a Court cannot go into the question of aptness or sufficiency of grounds upon which satisfaction of an authority is based"
99. Sri E. Manohar learned Senior Counsel and other learned Counsel have questioned Rule 9 of the Chairperson Rules only on the ground of arbitrariness. It is well settled that a rule or regulation or any type of statutory instrument made by delegated Legislation can only be questioned with reference only to the specific provision of parent statute conferring the power to make the rule, regulation etc., and also the object and purpose of the Act. It would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or that of the delegate as to what principle and policy would serve the objects and purpose of the Act and the merits or demerits of such policy can only be scrutinised with reference to the question as to whether impugned rules fall with in the scope of the rule making power. (See Maharashtra S.B.O.S & H.S., Education v. Paritose, . In Indian Express Newspapers v. Union of India, , the Supreme Court held that a piece of subordinate Legislation may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable but in the sense that it is manifestly arbitrary.
100. What is the legal meaning of 'arbitrariness'? In S.G. Jaisinghani v. Union of India, , the Supreme Court held that 'rule of law' requires the exercise of discretion within clearly defined limits and further observed that "The rule of law from this point of view means that decisions should be made by the application of known principles and rule and in general such decisions should be predictable and the citizen should know where he is . If a decision is taken without any principle or rule, it is unpredictable and such a decision is ante-thesis of a decision taken in accordance with rule of law."
101. In Srilekha Vidyarthi v. State of U.P., , the Supreme Court dealt with the meaning of arbitrariness in the following manner.
"The meaning and true import of arbitrariness is more easily visualised than precisely stated or defined. The question, whether an impugned act is arbitrary or not is ultimately to be answered on the facts and in the circumstances of a given case. An obvious trest to apply is to see whether there is any discernible principle emerging from the impugned act and if so does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is impediment following the procedure, the performance of the act otherwise and in manner which does not disclose any discernible principle which is reasonable may itself attract the vice of arbitrariness."
102. Therefore, in appreciating and considering the contention of the learned Counsel that Rule 9 of the Chairperson Rules is arbitrary, it is to be seen whether the action of the Government in placing reliance on the population figures gathered by the BC Corporation and projected to 1-3-1991 can be valid for the purpose of reservation of offices of Chairpersons in Municipalities in the State and whether such an action can be said to be unreasonable. In my considered opinion, having regard to the settled principle that the rule of 'strict standard of scrutiny' in matters relating to equal protection of laws is not applicable and that the decision of the Government is based on subjective satisfaction, which does not permit the Court to consider the apteness or adequacy of the material. It is not unreasonable to presume that the BC population figures projected to 1-3-1991 and which were published prior to taking decision from the correct basis for reservation of Offices of Chairpersons in favour of backward class citizens. On this I am also supported by a Division Bench judgment of Bombay High Court in Shri Kondaji Sajana Dhongde v. State of Maharashtra, ILR (1987) Bom. 217 (DB).
103. In Kondaji Sajana case (supra), the facts are these. After coming into force of the Constitution (Forty Second Amendment) Act, 1976 the State of Maharashtra amended various provisions of Maharashtra Zilla Parishads and Panchayat Samithis Act, 1961 so as to bring those provisions in tune with Articles 330 and 332 of the Constitution. The intention was to provide reservation in the Offices of local bodies to SCs., STs. The definition of 'population' was amended by the impugned Amendment Act to mean the population as ascertained by 1971 census. Therefore, the contention before the Division Bench of Bombay High Court was that instead of preparing the electoral divisions on the basis of population figures ascertained in 1981 census, the population figures are 'artificially crystallised and restricted to 1971 census only'. Therefore, adopting such artificial and fictional figure for the purpose of reservation is arbitrary, capricious, illusory and violative of Article 14 of the Constitution. The Bombay High Court having regard to the provisions of Articles 81, 82, 170, 330 and 332 of the Constitution which also provided that 1971 census shall be taken as basis and also relying on the judgment of the Supreme Court in Babaji Kondaji Garad v. Nasik Merchants Co-op. Bank, , upheld the action of the Government in placing reliance on the artificially crystallised census. The Division Bench of Bombay High Court after referring to Kondaji Garad case observed :
"Therefore, to make the reservation real and effective, the Legislature adopted a policy incorporated in the Constitution itself and therefore it is not possible to accept he contention that the amendment which is in tune with the constitutional provisions is in any way arbitrary or capricious."
104. Hon'ble Sri Justice B.P. Jeevan Reddy and Hon'ble Sri Justice K.S. Paripoorman decided the case in Ralanlal Nath v. State of Tripura, AIR 1997 SC 1075, which is a direct authority for the proposition that in case where census figures are not available, the Government is empowered to determine the population of persons belonging to reserved classes on the basis of any other authenticated record maintained by any office or organisation or the department of the State Government. In Ratanlal Nath case (supra), the High Court of Assam struck down, among others, proviso (ii) to sub-rule (3) of Rule 3 of the Tripura Panchayats (Delimitation of Constituencies) Rules, 1993. The said Rule provided that if census are not available for any reserved class people, it is within the competence of the State to do so on the basis of other material with them. The Apex Court reversed the judgment of the High Court of Assam. The definition of population as per clause (f) of Article 243 and as per clause (32) of Section 2 of Tripura Panchayat Act was considered and His Lordship Sri Justice B.P. Jeevan Reddy speaking for the Court observed :
".....Clause(f) of Article 243 of the Constitution defines the expression 'Population' in the following words : '(f) Population means the population as ascertained at the last preceding census of which the relevant figures have been published.' (Clause (32) of Section 2 of the Tripura Panchayat Act faithfully reproduces the said definition.) All that tile first and second provisos to sub-rule (3) of Rule 3 of the Delimitation Rules provide is that where census figures are available that shall be the primary basis - indeed, it shall be the only basis -for determining the total population of a Panchayat, or for that matter, the population of the Scheduled Tribes and Scheduled Castes, as the case may be, but where the census figures are not available, the population figures shall be ascertained from the other relevant authenticated record ..... The provisos really provide for a situation where census figures are not available. The Rules are inspired by the objective that elections have to be held and it is with this objective that they have made the said provision. We are unable to see how the said provisos can be held to travel outside the purview of the Act. ..... Not only the said provisos are not inconsistent with the provisions of the Act and the Constitution, but they in fact farther and advance the object underlying the Act and Part IX of the Constitution. We must say that we find no proper or acceptable reasoning in the impugned judgment for striking down the said Rules."
105. Sri K.S. Murthy learned Counsel for one of the petitioners also contended that arranging the population of STs., SCs. and BCs., percentage wise in the descending order and adopting the method of rotation for purpose of reservation is bad. In my considered opinion, this is the most rational method. The Office of Chairperson in a Municipality is only one. Having regard to the social inequalities in the Indian society, a provision like Article 243-T of the Constitution was made enabling the State Legislature to reserve the offices of Chairpersons. By clause (c) of subsection (1) of Section 23 of the Act as well as Section 14-A of the Corporations Act and in accordance with the relevant rules, the offices of Chairpersons have been reserved in favour of STs., SCs. and BCs. Such a reservation cannot be made permanently in favour of a particular category. Therefore, the device of rotation was brought into play and the posts of Chairpersons are rotated to different categories. To fulfil the aspirations of different sections of the society, such a system was introduced and the same cannot be held to be unreasonable or capricious. This view of mine is also supported by the judgment of the Supreme Court in Saraswathi Devi v. Shanti Devi, , as well as the Division Bench judgment of the Bombay High Court (Aurangabad Bench) in Mahesh Muljibhai Mistre v. State of Maharashtra, .
106. In various writ petitions, the notifications issued by the Government vide G.O. Ms. No.71, dated 5-2-2000 (the impugned notification) is challenged on alternative grounds. The contention is that the Chairperson Rules were not followed while specifying the number of offices of Chairpersons reserved for members belonging to STs., SCs., BCs. and Women as well as determining and notifying 67 Municipalities and Nagar Panchayats in the State as Municipalities reserved for members of the reserved classes.
107. While considering Point No.I as well as Point No.II, I have referred to various provisions of the Constitution, the Act, Corporation Acts and various Rules. Therefore, to avoid repetition, they are not again being referred to except to the extent it is necessary.
108. The Chairperson Rules are made by the Governor in exercise of powers conferred by sub-section (1) of Section 326 read with Section 23 of the Act in respect of Municipalities. Likewise, Ward Rules are made in exercise of powers conferred by Section 585 read with sub-section (2) of Section 5 of the HMC Act and Section 6 of the Corporation Act. The Chairperson Rules were notified on 3-2-1995. The Ward Rules were notified on 6-2-1995. After coming into force of those Rules, for the second time, the elections are being conducted in March, 2000 for various Municipalities and Corporations in the State of Andhra Pradesh. Rule 3 read with Rule 12 of the Chairperson Rules empowers the Government to declare by notification published in the AP Gazette the number of offices of Chairpersons reserved for STs, SCs, BCs and Women. Proviso to Rule 3 says that for the purpose of reservation of offices of Chairpersons, each Municipality/Nagar Panchayat shall be treated as one unit. Rules 4, 5 and 6 read together provide that the reservation shall be made in the order of STs., SCs. and BCs. and that while making reservation the fraction of less than half shall be ignored and fraction equal to or more than one half shall be counted as one; that while determining one third of total number of offices reserved, any fraction shall be rounded off to one. Rule 7 as originally existed reads as under :
"The offices of Chairpersons reserved for Scheduled Tribes, Scheduled Castes, Backward Classes and Women shall be allotted by rotation to different Municipal Councils in the State. The reservation of offices of Chairpersons can be started afresh without reference to the reservations of offices of Chairpersons made for earlier elections. The Commissioner and Director of Municipal Administration shall maintain a register for this purpose in the form annexed to these Rules."
109. Rule 8 deals with reservation for STs., SCs., BCs. and Women to be made with reference to largest percentage of population of the respective category to the total population of the Municipality in the descending order. According to Rule 9, the population figures of BCs gathered by the BC Corporation 'shall be taken as basis'. Rule 10 deals with reservation for Women which is in effect similar to what is provided for by clauses (2) and (3) of Article 243-T of the Constitution.
110. These Rules were enforced in connection with the Municipal elections held in March, 1995. The Government had issued a notification vide G.O. Ms. No.70, dated 5-2-2000 after coming into force of the Chairperson Rules. The Government in Schedule I of the notification specified the number of offices of Chairpersons to reserved classes and in Schedule II of the notification determined and notified 60 Municipalities/Nagar Panchayats reserved for members belonging to STs., SCs., BCs. and Women.
111. The Government amended Rule 7 of the Chairperson Rules by G.O. Ms. No.26, dated 17-1-2000. In Rule 7 for the words 'The reservation of Offices of Chairpersons shall be started afresh without reference to the reservation of offices of Chairpersons made for earlier elections' the words 'The reservation of Offices of Chairpersons shall be started afresh without any reference to the reservation of Offices of Chairpersons made prior to issue of the Andhra Pradesh Municipalities (Reservation of Offices of Chairpersons in Municipal Council and Nagar Panchayats) Rules, 1995' were substituted. After amendment, Rule 7 reads as under:
"The offices of Chairpersons reserved for Scheduled Tribes, Scheduled Castes, Backward Classes and Women shall be allotted by rotation to different Municipal Councils in the State. The reservation of (he Offices of Chairpersons shall be started afresh without any reference to the reservation of Offices of Chairpersons made prior to issue of the Andhra Pradesh (Reservation of Offices of Chairpersons in Municipal Councils and Nagar Panchayats) Rules, 1995. The Commissioner and Director of Municipal Administration shall maintain a register for this purpose in the form annexed to these Rules."
112. In some of these writ petitions, the challenge is also based on the ground that though in the earlier elections the office of Chairperson in a Municipality was reserved for a particular reserved category, again the office of same municipality is reserved contrary to Rule 7. Therefore, it is useful to notice the offices of Chairpersons reserved in March, 1995 election and the offices of Chairpersons reserved for March, 2000 elections and the offices of Chairpersons reserved for March, 2000 elections.
SI.No WP No. Name of the Municipality Reservation of offices of Chair persons in March 1995 Elections (G O Ms. No. 70, dt. 18-2-1995) in March 2000 Elections (G O. Ms No 71, dt. 5-2-2000) 1 955/2000 Jaggarahpet Women (Genl.) BC (Genl.) 2 1308/2000 Gudivada
-do-
-do 3 1992/2000 Vikarabad SC (Genl.) BC (Women) 4 2013/2000 Tadepaligudern Women (Genl.) BC (Genl.) 5 2014/2000 Kakinada do do-
6 2039/2000Vijayawada General BC (Women) 7 2081/2000 Anantapur do BC (Genl) 8 2094/2000 Khammam
-do 8C (Women) 9 2126/2000 Vikarabad SC (Genl.)
-do 10 2127/2000 Kadiri General Women (Genl.)
113. This Court has also verified from the two notifications as to whether Rule 7 as amended by G.O. Ms. No.26, dated 17-1-2000 has been followed. In view of Rule 7 that the offices of Chairpersons are reserved by rotation to different Municipal Councils without reference to the reservation of offices of Chairpersons prior to issuance of Chairpersons Rules, but taking into consideration the reservation of office of Chairpersons during March, 1995 elections, I find no illegality in the notification in G.O. Ms. No.71, dated 5-2-2000. There is also no illegality in reserving 35 offices of Chairpersons in various Municipalities in view of Rule 5 of the Chairpersons Rules. In view of this, the contentions raised by the learned Counsel in Writ Petition Nos.1992, 2126, 2081, 2127, 2214 and other writ petitions questioning the reservation itself to a particular reserved category are liable to be rejected.
In view of the above discussion, the conclusions that emerge under Point No.II are as under:
"(i) While examining a 'policy of affirmative action' on the touchstone guarantee of 'equal protection of laws' clause in Article 14 of the Constitution of India, the rule of 'strict standard of scrutiny' by the Court of judicial review is not permissible.
(ii) The State Government is at liberty to form opinion on the basis of the material it has already or it may gather such material through any other authority and all that is required is that there must be some material upon which the opinion is formed and the Court of judicial review should show due difference to the opinion of the State/ executive;
(iii) As the opinion of the State is formed by reason of 'subjective satisfaction', the question whether the material is 'inapt' or 'insufficient' cannot be gone into by the Court;
(iv) The Full Bench of this Court in Narayana Rao case has accepted Anantaraman Commission report determining the BC population at 33.5% and also permitted me State Government to adopt the average figures of BC population for the purpose of reservation policy.
(v) The Full Bench of this Court in Satyanarayana Reddy case has upheld a provision similar to Rule 9 of the Chairperson Rules and further gave liberty to the State Government to adopt the BC population figures gathered by BC Corporation if they are duly published following the procedure as indicated by this Court;
(vi) The Government of Andhra Pradesh issued G.O. Ms. No.34, dated 3-2-1995 directing the District Collectors to publish the BC population figures gathered by the BC Corporation, invite objections, consider the objections and publish the final figures. Accordingly, all the respective District Collectors insofar as these cases are concerned published the BC population figures of respective Municipalities in the respective District Gazettes. Therefore, this is sufficient compliance with the directions issued by the Full Bench of this Court.
(vii) The method of relying on the statistics gathered during a particular census or socio-economic survey duly projected to a subsequent date is well accepted method of determining the population figures and there is no illegality, arbitrariness or irrationality in Rule 9 of Chairperson Rules or/and Rule 9 of Mayor Rules.
(viii) The impugned notification in G.O. Ms. No.71 dated 5-2-2000 including Schedules I and II does not suffer from any infirmity or illegality and the same is issued in accordance with Chairperson Rules.
(ix) all other grounds urged by the learned Counsel in various writ petitions arc devoid of merits and they are liable to be rejected."
Point No.II is answered accordingly.
In re Point No.III:--
114. In Writ Petition Nos.1720, 2014, 2043, 2077 and 2081 of 2000 the petitioners challenged the reservation of seats/wards in various Municipalities for BCs., based on, according to them, lottery. In Writ Petition No.2013 of 2000, the petitioner has questioned the legality and validity of Rule 9 of the Ward Rules. The main contention is that when the reservation of wards of STs., SCs. and BCs., is made with reference to the large percentage of the said category to the total population of the ward in the descending order and by rotation, reservation of seats to BCs., by lottery by the authorities specified is illegal and irrational. This is rebutted by the Government. It is the case of the Government that there are authentic population figures for STs., SCs. and Women from 1991 census as published by Government of India. Therefore, the method of arranging these categories with reference to largest percentage of population in the descending order and reserving seats for them by rotation is in accordance with clause (1) and clause (3) of Article 243-T of the Constitution as well as sub-clauses (a) and (d) of sub-section (1) of Section 8 of the Act. However, as the authentic ward wise population figures of BCs were not available and as Section 8(1) of the Act empowers the Government by notification to reserve seats in Municipalities for backward classes, the system of determining the wards reserved for BCs., (by drawal of lots) is contemplated by Rule 9 of the Ward Rules. Whether such a method of reservation of wards 'by drawal of lots', cannot be said to be arbitrary and irrational?
115. The Ward Rules are made in exercise of powers under Seclion 326(1) read with Sections 8 and 10 of the Act. Rule 3 empowers the Government or 'authority specified' by notification to declare the number of seats reserved in each Municipal Council for STs., SCs., BCs. and Women under Section 8 of the Act which says that one-third of total number of seats are to be reserved for BCs. Rules 4, 5 and 6 deal with the method and manner of determining the total number of seats reserved for SCs., STs., BCs. and Women. Rule 7 (like Rule 7 of Chairperson Rules), was also amended by G.O. Ms. No.25-MA, dated 17-1-2000 and after the amendment the same reads as under :
"7. The seats reserved for Scheduled Tribes, Scheduled Castes, Backward classes and Women shall be allotted by rotation to different wards in a Municipality. The reservation of seats shall be started afresh without any reference to the reservation of seats made prior to issue of the Andhra Pradesh Municipalities (Reservation of seats in Municipal Council and Nagar Panchayats) Rules, 1995. The Municipal Commissioner shall maintain a Register for this purpose in the form annexed to these Rules."
116. Rule 8 of the Ward Rules lays down that reservation of seats for members belonging to STs, SCs and Women in the wards of the Municipality shall be made with reference to the largest percentage of the said category to the population of the ward in the descending order. As per impugned Rule 9 of the Ward Rules, after arriving at the wards proposed to be reserved for STs., SCs., and the seats to be reserved for BCs., in the remaining wards shall be decided by 'drawal of lots' by the authorities specified. After intimation of date, time and place to the representatives of all recognised political parties at District level, MLAs and MPs concerned the 'authority specified' shall then draw lots in the presence of such representatives of the people. Rules 10 and 11 deal with reservation of seats for woman including woman belonging to SCs., STs. and BCs.
117. As already noticed the Government issued a notification vide G.O. Ms. No.37 dated 3-2-1995 designating the Commissioner and Director of Municipal Administration as 'authority specified' and delegated the powers of the Government to fix the number of offices of Councillors to be reserved for STs., SCs., BCs. and Women in the Municipalities in the State. Similarly the Government also issued G.O. Ms. No.38 dated 3-2-1995 delegating the power of determination of specific wards to be reserved for STs., SCs., BCs. and Women in Municipalities to the Collectors of the Districts who was designated as 'authority specified' for the said purpose. The Commissioner and Director of Municipal Administration (the respondent in some of the cases) issued a Circular No.500/2000-Elec.l, dated 20-1-2000 to all the Municipal Commissioners and District Collectors in the State except the District Collector of Hyderabad. The Municipal Commissioners were requested to take action step by step in allotting the wards to reserved categories and the District Collectors were advised to keep the final notification ready to be issued at appropriate time. There is no dispute that the Commissioner issued notification in A.P. Gazette (Part I, Extraordinary) dated 27-1-2000 specifying the number of seats reserved for STs., SCs., BCs. and Women in respect of Municipal Councils mentioned in the schedule appended to the notification. The schedule shows various Municipalities and the number of seats reserved for various reserved categories.
118. The Circular dated 20-1-2000 issued by the Commissioner inter alia provides the following procedure for reservation of seats/wards for BCs.
"8(iv). Allotment of seats to BCs :--Since the ward wise population figures for BCs are not available in the Municipalities, the reservation of seats for BCs shall be decided by drawal of lots by the Authority specified under Rule 9.
.....
Under Rule 9 of the Authority specified i.e., the District Collector, shall intimate the representatives of recognised political parties at the District level. MLAs and MPs concerned about the date, time and place where lots will be taken and the lots shall be drawn by him in the presence of the said persons who may be present.
After striking off the wards which have been reserved for STs. and SCs., on the basis of the above lines and the wards if any which have been reserved for BCs., in the last election, the remaining wards will be put for lots and the required number of wards reserved for BCs., will be drawn by lot.
When reservation has to be made for women belonging to BCs., it shall be made from among the wards reserved for BCs., in which the percentage of population of women is the largest in descending order. In case that ward has been reserved for women of whatever category in the last elections, it shall not be reserved for women this time. The wards in which the percentage of women is the largest need be reserved for women in that category. This exercise shall be continued till the wards in which women of the category to be reserved are selected."
119. Therefore, the reservation for BCs., by drawal of lots is made among the remaining wards after reserving for STs. and SCs., and also excluding the wards which were already reserved during 1995 elections as per Rule 7 (extracted above) of the Rules. In view of the procedure and the scheme adopted for the purpose of reservation of seats/wards to BCs, can it be said that the Government is resorting to 'lottery method' as submitted by the learned Counsel for the petitioners ?
120. In B.R. Enterprises v. State of U.P., , the Supreme Court referred to R.M.D. Chamarbaughawala v. Union of India, , and observed that 'lottery contains an element of chance and being gambling in nature it is pernicious. The Supreme Court observed that there are three ingredients in selling the lottery tickets viz., (i) price, (ii) chance and (iii) consideration and that in 'lottery' there is no skill and participation in lottery is for some consideration. The person participating in lottery does not claim a right for getting a benefit. In that legal sense, the method adopted by the 'authority specified' for determination of specific wards, cannot be said to be 'lottery'. In my considered opinion, a reading of the provisions of sub-clause (b) of sub-section (1) of Section 8 and Rules 7 and 9 of the Ward Rules together shows that the method of determining the reserved wards for BCs., 'by drawal of lots', especially when there are no ward wise BC population figures, is for the purpose of rotation to different wards in the Municipalities. Such a method used in a transparent manner by operation of the proviso to Rule 9, avoids any arbitrariness in the exercise of power by the 'authority specified' when the ward wise BC population figures are absent. Indeed, clause (a) of sub-section (1) of Section 8 of the Act dealing with the allotment of seats of STs and SCs., contemplates allotment of reserved seats by rotation to different wards. As definite and authentic figures for ST, SC and Women are available, Rule 8 lays down that the reservation for these categories shall be made with reference to the largest percentage of population of the said category to the total population in the ward in the descending order. Where the population figures are not available, the method of drawal by lots is contemplated in the case of backward class members. Any element of irrationality or arbitrariness is obliterated by operation of Rule 7, which says that the reservation of seats after coming into force of the Ward Rules shall be taken into consideration while making reservations for the next elections. The Circular of the Commissioner further explains that if the wards were already reserved for BCs., in the last election, will also be excluded. In view of this inbuilt safeguard, in my considered opinion, the method of 'drawl of lots' cannot be said to be irrational.
121. The learned Counsel relied on the judgment of the Full Bench in Fakruddin case (supra). As submitted by the learned Advocate-General, in the civil Appeal filed against the judgment of the Full Bench, the Supreme Court has observed that all the questions raised now can be decided "unfettered by the judgment of the High Court". I see force in the submission made by the learned Advocate-General.
122. Sri E. Manohar learned senior Counsel mainly attacked Rule 9 of the Ward Rules on the ground of irrationality. The terms irrationality and unreasonableness are often used inter-changeably. Irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of the term if it is unreasoned. If it is lacking ostensible logic or comprehensible justification. (See De Smith, Judl. Review of Administrative Action 'by De Smith, Woold and Jowell, (1995 5th Edition), In Tata Cellular v. Union of India, , the Supreme Court quoted with approval the elucidation of House of Lords of the concept of 'irrationality' in Civil Service Union v. Minister for Civil Services, (1985) 1 AC 374, which approved the principle of "Wednesbury unreasonableness", first laid down in Associated Provincial Picture Houses v. Wednesbury Corporation, (1948) 1 KB 223. In Tata Cellular, the following passage from Civil Service Union case was quoted with approval.
" 'By irrationality', I mean what can now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrive at."
123. Therefore, determination of seats to be reserved for BCs., 'by drawal of lots' in any event cannot be said to be unreasonable, especially when the ward-wise population figures are not available, when the reservation is done for STs., SCs. and Women where the authentic 1991 census population figures are available for these categories and when the drawal of lots is held for the remaining wards excluding the wards which were already reserved for BCs. and when such transparent procedure is adopted by the 'authority specified' in the presence of the representatives of the people and representatives of the political parties. Point No. III is accordingly decided against the petitioner holding that Rule 9 of the Ward Rules is valid and the same does not suffer from the vice of irrationality.
In re point No. IV:
124. The learned Counsel in Writ Petition Nos.1720 of 2000 and 2077 of 2000 submitted that without identifying and excluding the 'creamy layer' among the backward class citizens, it is not permissible for the State to implement the policy of reservation in Municipal bodies. Though the averments are made in the affidavit accompanying the writ petitions, the learned Counsel for the petitioners have not specifically adverted to this aspect of the matter. Therefore, it is not possible for this Court to consider this point in depth. Nonetheless in view of latest judgment of the Supreme Court in Indra Sawhney (supra), it is necessary to make observations having regard to the importance of the question raised in the pleadings.
125. In Indira Sawhney (supra), the case was brought before the Supreme Court complaining that Kerala Legislature passed an enactment called Kerala State Backward Classes (Reservation of Appointment or posts in the Service under the State), 1995. Section 3 of the said Act declared that there are no socially advanced sections in backward classes and that the BCs in the State are not adequately represented. This Act of Kerala was challenged before the Supreme Court under Article 32 of the Constitution as violating Articles 14 and 16 of the Constitution. His Lordship Hon'ble Sri Justice Jagannadha Rao, who delivered the unanimous opinion of the Division Bench of the Court, inter alia, framed the issue to the effect - what is the law declared and what are the directions given in Indira Sawhney (supra) in regard to 'creamy layer' in the contest cf Articles 14 and 16 of the Constitution. His Lordship referred to the judgment of the nine Judge Bench of the Supreme Court in Mandal case (Indira Sawhney) and on the issue referred to herein held that in view of the directions in Mandal case, the Central and State Governments are obliged to create separate bodies to identify 'creamy layer' in the backward classes within a time frame. Therefore, though the petitioners in these two petitions are not totally incorrect in raising the question, I am not able to record any finding as no material is placed before me and the petitioners have not discharged the initial burden which is undoubtedly on them to substantiate their case. In constitutional litigation, no citizen is entitled to claim any relief unless proper pleadings made supported by proper material and are substantiated with reference to facts and law. On Point No.IV it is to be held that for the reason that 'creamy layer' among BC citizens is not excluded; the State policy for reservation of offices of Chairpersons as well as seats for BCs., cannot be held to be illegal and unconstitutional.
In Re point No.V :
126. This point for consideration arises only with reference to Writ Petition No.2014 of 2000. Petitioner therein belongs to Kakinada Municipality. His grievance is that if the Municipal Corporations and Municipalties in the Slate of Andhra Pradesh are treated as one homogenous group and if one notification is issued for elections, Kakinada Municipality would not have been reserved for BC (General) and the petitioner would not have been deprived of a right to contest the election. At the outset, I should mention that this is not substantiated before this Court. Be that as it may, though the petitioner impugns the validity of Section 23 of the Act, Section 14-A of the Corporations Act and various Rules and the impugned notification as ultra vires the provisions of Articles 243P, 243Q and 243T, the learned senior Counsel, Sri S. Venkata Reddy, has not seriously challenged the validity of Section 23 of the Act and Section 14-A of the Corporation as Act on any other ground. It is his submission that these provisions are ultra vires the provisions of the Constitution in Articles 243-P, 243-Q and 243-T.
127. Developing his arguments, the learned senior Counsel Sri S. Venkata Reddy would submit that for the purpose of Part IX-A of the Constitution, 'municipality' means either Nagar Panchayat or Municipal Council or Municipal Corporation constituted in accordance with Article 243-Q of the Constitution. Therefore, when under clause (6) of Article 243-T the State is enabled to make reservation of seats in any Municipality of offices of Chairpersons in the Municipality, it means only one enactment and one election notification dealing with all types of Municipalities in the State. Therefore, Section 23 of the Act and Section 14-A of the Corporation Act, which provide for reservation of Offices of Chairpersons in Municipalities and offices of Mayors in Corporations are unsustainable as the Constitution contemplates reservations for all the offices of Chairpersons as one unit without making any distinction. Therefore, according to the learned senior Counsel, for the purpose of prescribing percentage of reservations and allotment of offices to various Municipalities including Municipal Corporations, all the local bodies have to be taken as one unit.
128. The counter-affidavit in Writ Petition No.2014 of 2000 by the Stale Government is as follows : Under Article 243-Q the population of local area, the density of the population, the revenue generated, the percentage of employment in non-agricultural activities, the economic importance and such other factors are the prime consideration in constituting a Nagar Panchayat for a transitional area, a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area. Though Part IX-A provides that the State Government by law provide for the constitution of Municipalities, for conducting elections to Municipalities and for making any provision for reservation of seats or offices of Chairpersons, the State has got powers under Article 246(3) to make law with reference to the subjects in Entry 5 of List II of State List in the Seventh Schedule to the Constitution. The Constitution does not specifically say that the State should necessarily make only one law for all types of'Municipalities'. Within the framework and the guidelines as contained in Part IXA, it is left to the wisdom of the State to make as many number of laws as are required to meet different situations. The State enacted HMC Act, Corporations Act, as well as Vizag Act and VMC Act. These enactments govern the Municipal Councils and Municipal Corporations and are existing enactments and there is no enactment to govern Nagar Panchayat. Therefore, after coming into force of the Constitution (Seventy Fourth Amendment) Act, 1992, the State Legislature amended the Act, and inserted Section 2-A which says that the provisions of the Act shall apply to Nagar Panchayats and Nagar Panchayats shall be deemed to be Municipalities. Section 23 of the Act governs the election of Chairperson whereas Section 90 of the Corporations Act governs the election of Mayor. The powers exercised by Chairpersons and Mayors are different in many respects and there is no similarity. The State Government in exercise of powers under clause (6) of Article 243-T made provisions for reservation of offices to Chairpersons in Municipalities and for reservation of Mayors in Municipal Corporations. When Article 243-Q itself makes a distinction among the three types of Municipalities, treating them as one unit for the purpose of reservation would be contrary to the provisions of the Constitution.
129. The learned Advocate-General reiterated the same submissions as noticed in the above paragraph. Part IX-A of the Constitution deals with Municipalities. Prior to Seventy Fourth Amendment Act Entry 5 of List II of Seventh Schedule conferred legislative competence on the State Legislature to make law in regard to local Government, that is to say, Municipal Corporations, improvement trust, district board, and other local authorities for the purpose of local self-Government or village administration. In view of this legislative Entry, it could not have been possible for one to contend that the State has no legislative competence to enact a separate law for Municipal Corporations as well as another law for Municipalities. The legislative Entry deals with local Government for Municipal Corporations and other local authorities. Therefore, the State has competence to make separate law for each separate local authority, including Municipal Corporations, for the purpose of local self-Govemment. Entry 5 clarifies when it reads "...... that is to say, the constitution and powers of...... and other local authorities for the purpose of local self-Government....."
After Seventy Fourth Amendment, Article 243-Q has not made any change insofar as this position is concerned. Article 243-P(e), which defines 'Municipality', cannot be read in isolation. If what Sri S. Venkata Reddy submits is true, Article 243-Q would have been in a different language. But the Article empowers the State to constitute 'a Nagar Panchayat for a transitional area; a Municipal Council for a smaller urban area; and a Municipal Corporation for a larger urban area'. It is useful to extract clause (1) of Article 243-Q excluding the proviso.
"243-Q Constiution of Municipalities:--(1) There shall be constituted in every State -
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part."
130. After sub-clause (b) of clause (I) of Article 243-Q, the word used is 'and' which clinchingly shows that the three types of Municipalities are distinct and cannot be classified as one for the purpose of elections and for that matter for any other purpose. What should be the distinguishing features among these three types of Municipalities is left to the wisdom of the State Legislature. The word 'and' between sub-clause (b) and sub-clause (c) of clause (1) of Article 243-Q is crucial to the interpretation of the word 'Municipality' as defined in Article 243-P(e). For the purpose of convenience, the Constitution uses the word 'Municipality' instead of using three different words but empowers the State to constitute a Municipality called 'Nagar Panchayat', a Municipality called 'Municipal Council' and a Municipality called 'Municipal Corporation' depending on the various factors mentioned in clause (2) of Article 243-Q. This view is further supported by clause (6) of Article 243-T itself on which the learned Counsel, Sri S. Venkata Reddy, also placed reliance. The said clause is as under :
"243-T(6). Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens." (underlining by me)
131. Clause (6) uses the plural 'Municipalities'. Therefore, as per this clause 'nothing in Part IXA' prevent the Legislature of a State from making any provision for reservation of seats in 'Municipalities', be it a Nagar Panchayat, be it a Municipality and be it a Municipal Corporation. In my considered opinion, any doubt on the interpretation of Article 243-Q read with Article 243-P(e) is dispelled by the language or Article 243-T where it says that nothing in Part IXA shall prevent the Legislature of a State to make a separate law for Municipalities as well as a separate law for Municipal Corporations.
132. In Saij Gram Panchayat v. Stale of Gujarat, , the Supreme Court interpreted the scope of Article 243-Q of the Constitution and held as follows :
"..... Article 243-Q deals with Constitution of Municipalities. Municipality is defined under Article P(e) to mean an institution of self-Government constituted under Article 243-Q. Article 243-Q constitutes three types of Municipalities - (a) a Nagar Panchayat, (b) a Municipal Council and (c) a Municipal Corporation. The proviso to Article 243-Q deals with all three types of Municipalities constituted tinder clause (1), It provides that a Municipality under clause (1) may not be constituted in certain circumstances. This would refer to any of the three types of Municipalities..... Therefore, in respect of any of these three types of areas set out in clause (1) of Article 243-Q, having regard to the seize of the area, the Municipal services being provided or proposed to be provided by an industrial establishment in that area, and such other factors as the Governor will deem fit to consider, he may, by public notification specify such area to be an industrial township."
133. It is well settled that in the field of interpretation of Constitution, no word should be construed as surplus and no word should be treated as superfluous or wastage or vestige. Therefore, wide meaning shall have to be given while reading the various Articles and various clauses in the Articles together. Further, in interpreting the law or a provision of law, if two views are possible, the one, which renders the provision constitutionally invalid should be avoided and the view, which renders the provision constitutionally valid, should be preferred to. The submission made by Sri S. Venkata Reddy, learned senior Counsel, if accepted would result in treating the unequals - Nagar Panchayats, Municipal Councils and Municipal Corporations, which are three distinct bodies as equals violating Article 14 of the Constitution.
134. For these reasons, the submissions made by the learned Counsel for the petitioner are liable to be rejected. Point No.V is answered in the negative against the petitioners and in favour of the State.
In re Point No. VI :
135. In WP No.2039 of 2000, the petitioner challenged the notification issued by the Government vide G.O. Ms. No.70, dated 5-2-2000. The petitioner approached this Court based on a news item in 'The Hindu' and submits that inspite of his best efforts he could not secure a copy of the notification. Be that as it may, vide the impugned notification issued in exercise of powers conferred under Section 14-A of the Corporations Act read with Rule 3 of the Mayor Rules, the Governor fixed and determined the number of offices of Mayors in Municipal Corporations of the State as reserved for STs, SCs, BCs and Women. By the said notification, the office of Mayor of Vijayawada Municipal Corporation was reserved for BC (Women). The petitioner has challenged this on the ground that the basis for such reservation being the population figures of BCs., gathered by BC Corporation duly projected to 1-3-1991, the same is illegal and arbitrary. A similar provision in Chairperson Rules is subject matter of point No.1 supra. The findings thereon also cover this aspect of the case.
136. The learned Counsel for the petitioner - though fairly submitted that they were not raised; has urged that the A.P. Municipal Corporations (Reservation of Offices of Mayors) Rules, 1995 were not validly made in exercise of rule making power. Alternatively he submits that Mayor Rules are not published and hence they are unenforceable.
137. Vijayawada Municipal Corporation (VMC, for brevity) was established with effect from 6-6-1981 in accordance with Section 3 of the VMC Act. By Section 7 of the VMC Act, the provisions of HMC Act are applied and extended to VMC. Therefore, Section 90 of the HMC Act dealing with election of Mayor to Corporation shall apply mutatis mutandis to VMC. So as to provide for establishment of Municipal Corporations in the State of Andhra Pradesh, the State Legislature enacted A.P. Municipal Corporations Act, 1994 (Act 25 of 1994). The said Act extends to the whole of the State except to local areas covered by Hyderabad, Visakhapatnam and Vijayawada Municipal Corporations. The Act received the assent of the Governor on 12-8-1994. Section 3 deals with 'specification of large urban area' by notification when a Corporation shall be deemed to have been constituted. Section 6 deals with reservation of seats for STs., SCs. and BCs. Section 9 deals with election to the office of Mayor of a Corporation. Section 14 applies to the provision of HMC Act to a Corporation constituted under the Corporations Act. Section 14 of the Corporations Act and Section 7 of the VMC Act are 'in part materia. Be that as it may, either Section 90 of the HMC Act, which is made applicable to VMC, or Section 9 of the Corporations Act dealing with the office of Mayor as such did not provide for any reservation for the office of Mayor. To fill up this vacuum, A.P. Municipal Laws (Second Amendment) Act, 1995 (Act 25 of 1995) inserted Section 14-A in Corporations Act. The said provision reads as under :
"14-A. General provision for reservation of office of Mayor in the Corporations of the State :--Notwithstanding anything contained in sub-section (2) of Section 1 of this Act, out of the total number of offices of Mayor of the Corporations, constituted either under this Act or under any other law relating to the Municipal Corporations for the time being in force in the State, the Government shall, subject to such rules as may be prescribed, by notification reserve,--
(i) such manner of offices to the Scheduled Castes and Scheduled Tribes as may be determined subject to the conditions that the number of offices so reserved shall bear, as nearly as may be, the same proportion to the total number of offices to be filled in the State as the population of the Scheduled Castes or Scheduled Tribes, as the case maybe, in all the Corporations of the State bears to the total population in the Corporations of the State and such offices may be allotted by rotation to different Corporations in the State;
(ii) one-third of the offices to the Backward Classes and such offices may be allotted by rotation to different Corporations in the State;
(iii) not less than one-third of the total number of offices reserved under clauses (i) and (ii) for women belonging to the Scheduled Castes, Scheduled Tribes or as the case may be, the Backward Classes; and
(iv) not less than one-third (including the number of offices reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the Backward Classes) of the total number of offices to be filled in the State for women, and such offices may be allotted by rotation to different Corporations in the State."
138. The Governor of Andhra Pradesh in exercise of powers conferred by Section 585 of the HMC Act read with Section 14 of the Corporations Act promulgated the Rules. These Rules are called A.P. Municipal Corporations (Reservation of Office of Mayor) Rules, 1995. As per clause (ii) of Rule I of the Mayor Rules, the Rules apply to all the Municipal Corporations in the State. In connection with elections to Corporations scheduled in March, 2000 the Government issued a Notification vide G.O. Ms. No.70, dated 5-2-2000. By the said notification, the Governor of Andhra Pradesh, in exercise of powers conferred under Section 14-A of the Corporations Act read with Rule 3 of the Mayor Rules, fixed and determined the number of offices of Mayors in the State reserved for STs, SCs, BCs and Women, inter alia reserving the office of Mayor of VMC for BC (Women).
139. The submission made by Sri V.S.R. Anjaneyulu, the learned Counsel is that till the enactment of Section 14-A of the Corporations Act, there was no provision in VMC Act or the HMC Act reserving the office of Mayor for STs, SCs and BCs, that the Act 25 of 1995 inserting Section 14-A in the Corporations Act received the assent of the Governor on 22-4-1995 and was duly published in A.P. Gazette pn 24-4-1995 and, therefore, the Mayor Rules issued by the Government in G.O. Ms. No.46 MA, dated 6-2-1995 prior to coming into force of Section 14-A are not applicable for the purpose of reserving the office of Mayor of VMC in favour of BC (Women). This submission appears to be attractive and forceful, but the same is without substance.
140. By Section 14-A, the Corporations Act was made applicable also to Hyderabad, Visakhapatnam and Vijayawada Municipal Corporations insofar as the general provision for reservation of office of Mayor is concerned. It, however, should not be forgotten that the Constitution (Seventy Fourth Amendment) Act, 1992 came into force with effect from 1-6-1993. Therefore, in exercise of powers under Section 585 of the HMC Act rad with Section 14 of the Corporations Act, which received the assent of the Governor on 12-8-1994, published in the Gazette on 16-8-1994 and deemed to have come into force with effect from 4-7-1994 (Section 1(3) of the Corporation Act), these Rules were made applicable to all the Municipal Corporations in the State. In view of this , it cannot be accepted that Section 14-A alone is the enabling provision for reservation of offices of Mayors in Corporations. Another important aspect which is lost sight of by the learned Counsel is Section 1(2iii) of Act 25 of 1995, which says that Section 14-A of the Corporations Act shall be deemed to have come into force with effect from 6-2-19956 and, therefore, the Mayor Rules cannot be said to be invalid and incompetent. Further, as per Section 7 of the VMC Act, the provisions of HMC Act are made applicable and as the Mayor Rules are made with effect from 6-2-1995 in accordance with clause (6) of Article 243-T, there is no infirmity in the impugned notification. Indeed, the Rules are not framed under Section 14-A of the Corporations Act. But the impugned notification is issued on 5-2-2000 in exercise of powers under Section 14-A of the Corporations Act read with Rule 3 of the Mayor Rules which empowers the Government to fix and determine the number of offices of Mayors of Corporations to be reserved for STs., SCs. and BCs. Therefore, the submission of the learned Counsel is liable to be rejected. In view of this finding that the notification of reservation is issued on 5-2-2000, very much after the publication of Act 25 of 1995, the other submission of the learned Counsel is also without any substance.
141. Further, the VMC Act as well as the Corporations Act, insofar as application of HMC Act is concerned, are 'legislation by reference'. It is well settled that when a legislation is made 'by reference', all the subsequent amendments made to the parent Act shall be deemed to have applied to the legislation 'by reference'. As Section 7 of the VMC Act makes HMC Act applicable by reference, Section 14-A of the Corporations Act, which is made applicable to Hyderabad Corporation and other Corporations, shall be deemed to have been applied even to VMC.
142. Needless to add, there is no legal embargo for the delegated Legislature to make Rules and publish the Rules even before the parent Act providing for making of Rules is duly published and brought into force. In such an event, the law only presumes that the delegated Legislation is enforceable after the parent Act is brought into force. In this connection, I may refer to a Constitution Bench judgment of the Supreme Court in Sakhwant Ali v. State of Orissa, and a Division Bench of this Court in Gram Panchayat, Zillalguda v. State of A.P., . In Sakhwant Ali case (supra), the Supreme Court considered a simitar question and held in Para 7 as under :
"Ordinarily the statute enacted by a State Legislature comes into force as soon as it receives the assent of the Governor. Section 1(3) of the Act however postpones the commencement of the Act which means that Section 1 (3) came into operation immediately the Governor gave his assent to the Act..... all incidental steps for the holding of such elections were certainly contemplated to be taken and those steps which would be thus taken in anticipation of the Act coming into force in a particular area were certainly authorised by the terms of Section 1(5) by necessary implication, because no elections could be held unless all the preliminary steps for holding the same were taken."
Again in para 8, the Supreme Court observed as follows :
"No doubt the Act was not to be in force in a particular area until the relevant notification was issued by the State Government and until the Act came into force the disqualifications prescribed in Section 16(1) of the Act would not normally attach to candidates for election. The Election Rules also would be framed in exercise of the powers reserved under the Act and if the Act had not come into force much less could be the election rules come into operation and bind the candidate."
The judgment of the Division Bench of this Court in Gram Panchayat case (supra) is also to the same effect.
143. In view of the above, Point No. VI is decided holding that the Mayor Rules have been validly made and promulgated and that the impugned G.O. Ms. No.70, dated 5-2-2000 is not illegal.
In re point No. VII :
144. Before parting with the case, it is convenient to record the conclusions under various points for consideration.
Maintainability of writ petitions :
1.1. By reason of clause (a) of Article 243-ZG, the division of Municipality into territorial constituencies called wards or allotment of seats to such wards or notification specifying the offices of Chairpersons of Municipalities reserved to persons belonging to STs., SCs. and/or BCs. cannot ordinarily be challenged under Article 226 of the Constitution.
1.2. In view of the embargo placed by clause (a) of Article 243-ZG, a law providing for delimitation of constituencies and allotment of seats to such constituencies made by the State Legislature under clause (6) of Article 243-T read with clause (2) of Article 243-ZA and Entry 5 of List II of Seventh Schedule to the Constitution cannot be called in question under Article 226 of the Constitution.
1.3. The principles 1 and 2 are subject to the condition that if the delimitation notification is arbitrary and, in the sense, that before delimitation no objections are invited and no hearing was given, to a limited extent, the same is amenable to judicial review by this Court under Article 226 of the Constitution.
Validity of Rule 9 of Chairperson Rules and validity of notification vide G.O. Ms. No.71, dated 5-2-2000 and G.O, Ms. No.70, dated 5-2-2000.
2.1. While examining a 'policy of affirmative action' providing for reservations in democratic bodies, on the touchstone of guarantee, of 'equal protection of laws' clause in Article 14 of the Constitution, the rule of 'strict standard scrutiny' by the Court of judicial review is not permissible.
2.2. The State Government is at liberty to form opinion on the basis of the material it has already or it may gather such material through any other organisation or authority and all that is required is that there must be some material upon which the opinion is formed and the Court of Judicial review should show due deference to the opinion of the State executive.
2.3. As the opinion of the State is formed based on 'subjective satisfaction', the question whether the material is 'inapt' or 'insufficient' cannot be gone into by the constitution Court.
2.4. The method of relying on the statistics gathered during a particular census or socio-economic survey duly projected to a subsequent date is well accepted method of determining the population figures and there is no illegality, arbitrariness or irregularity in Rule 9 of Chairperson Rules or/and Rule 9 of Mayor Rules.
2.5. The impugned notification in G.O. Ms. No.71 MA dated 5-2-2000 including Schedules I and II does not suffer from any infirmity or illegality and the same are issued in accordance with Rules.
Validity of Rule 9 of Ward Rules :
3.1. The method of reservation of seats/ wards to BCs., by drawal of lots cannot be said to be irrational, as it is done for the purpose of rotation to different wards in the Municipalities.
Whether reservation is bad for the reason of not excluding the 'creamy lover'.
4.1. The State policy of reservation of offices of Chairpersons as well as seats for BCs cannot be held to be illegal or unconstitutional on the ground that the 'creamy layer' is not excluded, especially when no proper material is placed before the Court.
Whether Municipalities and Municipal Corporations should be treated as one unit for the purpose of reservation :
5.1. In view of Entry 5 of List II of Seventh Schedule to the Constitution, State has power to make separate law for each separate local authority, including Municipal Corporation for the purpose of local self-Govemment.
5.2. The three types of Municipalities mentioned in Article 243-Q are distinct and cannot be classified as one for the purpose of elections or for that matter any other purpose. What should be the distinguishing features among the three types of Municipalities is left to the wisdom of the State Legislature.
5.3. Nothing in the Part IX-A shall prevent the Legislature of a State to make a separate law for the Municipalities as well as a separate law for Municipal Corporations.
5.4. If the contention that all the three types of Municipalities should be treated as one unit is accepted, it would result in treating the unequals - Nagar Panchayats, Municipal Councils and Municipal Corporations - which are three distinct bodies as equals violating Article 14 of the Constitution.
Reservation of Office of Mayor of VMC :
6.1. Section 14-A of the Corporations Act read with Rule 9 of the Mayor Rules empower the Government to fix and determine the number of offices of Mayors of Corporations to be reserved for STs., SCs. and BCs. Section 14-A of the Corporations Act shall be deemed to have come into force with effect from 6-2-1995 as per Section l(2Xiii) of the Act 25 of 1995 and, therefore, there is no illegality in the said Rules promulgated in G.O. Ms. No.46 dated 6-2-1995.
6.2. There is no legal embargo for the delegated Legislation to make rules and publish the rules even if the parent Act providing for making of rules is not duly published and brought into force. In such an event, the delegated legislation is enforceable only after the parent Act is brought into force.
6.3. Mayor Rules have been validly made and promulgated and that the impugned G.O. Ms. No.70 dated 5-2-2000 is not illegal.
Conclusion The first case in this Batch, Writ Petition No.955 of 2000 was filed on 25-1-2000. On that day, the learned Government Pleader was well as the learned Standing Counsel for the Commission submitted that the notification will be issued after 10-2-2000 and, therefore, requested that the matters be disposed of finally. On the subsequent days, number of writ petitions were filed challenging the notification issued by the Government or the Commissioner and Director of Municipal Administration reserving the offices of Chairpersons in the Municipalities and fixing the number of seats/wards reserved in the Municipalities. The Commission filed a counter affidavit in Writ Petition No.955 of 2000 to the effect that by virtue of two Government Orders delegating the powers the 'authority specified' is either the Commissioner of Municipal Administration or the District Collector for the purpose of reservation, and therefore, the Commission is not concerned whatsoever. In these matters, very serious questions were raised having regard to the three Full Bench judgment of this Court. When the matter was being heard, Sri V. V. Prabhakar Rao, the learned standing Counsel for the Commission submitted that the Commissioner has already issued notification on 12-2-2000 in exercise of powers under clause (1) of Article 243-ZA read with Section 10-A of the Act and various notifications in respect of Municipal Corporations calling upon the registered voters in the Municipalities and Municipal Corporations to elect members to the wards as well as Chairpersons to the respective Municipalities and Mayors to the respective Municipal Corporations. As per clause (3) of Article 243-U of the Constitution, an election to constitute a new Municipality shall have to be completed before the expiry of the duration from the date of the first meeting of the outgoing Municipal Council. It is not denied that the first meeting of the Municipalities in the State elected pursuant to March, 1995 elections was held on 29-3-1995 and the terms of the elected Council is expiring on 28-3-2000. When all the learned Counsel for the petitioners, learned standing Counsel for the Commission and the learned Advocate-General requested this Court to finally hear and dispose of the matters, there was no great hurry for the Commission to issue notifications under clause (1) of Article 243-ZA read with relevant provisions of the relevant Acts, which certainly caused a feeling of consternation among many in the Court.
145. In a democratic polity governed by rule of law and a written Constitution, every constitutional authority even while exercising power conferred under the Constitution should conduct one-self with utmost sense of respect to other constitutional authorities. For the fear of criticism nothing should be done in haste, for any action of a constitutional authority would be a 'history in the making' and it is just not a routine administrative action which is usually consigned to archives. No constitutional authority should assume that the written word in the Constitution is final and that any action would pre-empt this Court from prohibiting the 'doing of a Constitutional act'. There are large areas of 'silence ' in the Constitution, including Part IXA, which speaks volumes and 'Counsel' every authority concerned with Part IX A of the Constitution. I am compelled to make these observations because on instructions from the Commission, is Counsel Sri V.V. Prabhakar Rao, submitted before this Court on 11-2-2000 at the closing hours of the Court proceedings, that eh Commission is likely to issue a notification any day though everybody concerned with Municipal elections were aware by that time that this Court is seized of the matter and that with the assistance and cooperation of all the learned Counsel as hearing the cases finally. The voters lists in Municipalities were published on 27-1-2000, Commissioner of Municipal Administration issued Circular of guidelines for reservation on 20-1-2000, Government issued Notifications under Chairperson Rules, Mayor Rules, Ward Rules and Corporation Ward Rules on 5-2-2000 reserving offices and wards. When the authorities are completing all these steps, citizens approached this Court. These facts are 'res ipsa loquitur' that the action of the Commission in calling upon voters of Municipalities to elect representatives is not without hurry. But 'Rule of Law' and 'Democracy' leave no alternative to the Court but to allow the elections to be concluded according to time schedule so as not to retard or protract them and all disputes should be postponed till after the elections are over' (see : Ponnuswamy case)
146. In the result of the findings on various points for consideration, alt the writ petitions are dismissed, but in the circumstances there shall be no order as to costs.