Punjab-Haryana High Court
Deepak Jain And Others vs State Of Punjab And Others on 10 May, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N. Jindal
CWP No. 8753 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 8753 of 2012
Date of Decision: 10.05.2012
Deepak Jain and others ........Petitioners
Versus
State of Punjab and others .......Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. S.P. Jain, Senior Advocate with
M/s Raman Sharma & Dheeraj Jain, Advocates
for the petitioners.
HEMANT GUPTA, J.
Challenge in the present petition is to the notification dated 20.04.2012 (Annexure P-2) under Section 6 of the Municipal Corporation Act, 1976 whereby the wards have been reserved for Scheduled Caste, Scheduled Caste Women, Women (General Category) and Backward Classes. The challenge to the said notification is on the premise that the State Government while issuing the notification has not rotated the wards as is required under Section 6 of the Act and keeping in view the provisions of Section 243(ZG) of the Constitution of India in Part IXA introduced by virtue of 74th constitutional amendment.
Learned counsel for the petitioners has referred to judgments passed by Division Bench of this Court in the cases Pawan Kumar and others vs. State of Haryana and others, AIR 2011 Punjab 102; Bhagwat CWP No. 8753 of 2012 2 Dayal vs. State of Punjab and others, 2009(2) PLR 789; Inderjit vs. State of Punjab (LPA No. 1294 of 2010) decided on 15.02.2012 and the Single Bench judgment of this Court in the case titled as Taranjit Singh Walia vs. State of Punjab and others (CWP No. 10436 of 2008) decided on 23.01.2012 and Sukhwinder Kaur vs. State of Punjab and others, 2011(1) RCR (Civil) 896 as well as judgment of the Hon'ble Supreme Court in the case of Kasambhai E Ghanchi vs. Chandubhai D. Rajput and others, (1998) 1 Supreme Court Cases 285.
The reliance on the aforesaid judgments is to contend that the reservation of the wards and their rotation is mandatory. Since the wards have not been rotated, therefore, the notification (Annexure P-2) is legally not sustainable. It is contended that the same wards which were reserved for the previous elections conducted in the year 2007 have been reserved again for the elections in the year 2012. It is argued that since the notification reserving the wards was issued on the same date i.e. on 20.4.2012 when the notification under Section 7-A of the Act was issued, therefore, the petitioners have right to challenge this notification before this Court as there was no opportunity with the petitioners to approach this Court before the publication of notification under 7-A of the Act.
We have heard learned counsel for the petitioner but find no merit in the present petition. In the judgments referred to by learned counsel for the petitioners, it has been held that the reservation of wards for the categories mentioned under Article 243T of the Constitution of India is mandatory. Section 6 of the Act has been incorporated keeping in view Article 243T of the Constitution of India. A Division Bench of this Court in CWP No. 8753 of 2012 3 Inderjit's case (supra) has held that Article 243T of the Constitution of India and Section 8 of the Act is to provide reservation for women, Scheduled Castes and Backward Classes in a Municipality. It is the said reservation which was found to be mandatory but as to which seats are to be reserved for them is a matter of procedure and directory. It was held to the following effect:-
"As mentioned above, the intention of Article 243T of the Constitution of India and Section 8 of the Act is to provide reservation for women, Scheduled Castes and Backward Classes in a Municipality. As to which seats are reserved for them, is a matter of procedure and is directory. Therefore, while rotating the wards, it is not necessary for the State Government to rotate the wards with exactitude. The State has to be given play in knees joints to adjust according to the requirements keeping in view the population of the Backward Classes/Scheduled Castes voters. Therefore, we do not find any illegality in the process of notification for reserving wards. The Division Bench of this Court in Baldev Raj vs. State of Punjab, ILR (2009) 1 P&H 355, has observed that only right of a citizen in the matter of election is to exercise franchise according to his free will and choice. This right of the appellant/petitioners remained intact irrespective of the fact that the ward in question has been reserved or dereserved. Therefore, we do not find that any prejudice has been suffered by the appellant/petitioners by reserving Ward No. 11 for a backward class candidates."
In the present case, even if some wards have been reserved again but we do not find any ground to intervene in the election process, once the same has been started in view of the judgment of this Court in Lakhbir Singh Sehmee's case (supra) wherein the reliance was placed upon the Supreme Court judgment in Anugrah Narain Singh and another vs. State of U.P. And others (1996) 6 SCC 303. It has been held to the following effect:-
CWP No. 8753 of 2012 4
"In the present case, in terms of Section 7-A of the Act, the State Government has issued notification on 20.04.2012. The election process has started with the publication of the aforesaid notification. The State Election Commission has decided that electoral rolls for Punjab Vidhan Sabha prepared on 01.01.2012 shall be the electoral rolls for the election to the Municipal Corporation. The elections to the State Legislature have been held only in the month of February, 2012. Therefore, the said Rolls are the most recent rolls and relevant for the elections of the Municipal Corporation.
Similarly, fresh preparation of the electoral rolls is not necessary, as it has been decided by the Election Commission that the electoral rolls, as prepared for the election of Punjab Vidhan Sabha shall be used for the purpose of election of Municipal Corporations with reference to 01.01.2012, as the qualifying date.
A Full Bench of this court in Prithvi Raj Vs. State Election Commission, Punjab & others AIR 2007 P&H 178 has held that the jurisdiction of this Court stands barred, when a notification under Section 13-A of the Punjab Municipal Act, 1911 correspondence to Section 7-A of the Act is issued. It is held to the following effect:
"21. A conjoint reading of the provisions of Constitution, the Municipal Act and the Election Commission Act leads to a singular conclusion, namely, that once an election has been notified under Section 13-A(2) of the Municipal Act, an "election", as defined in Section 3 (4-c) thereof, can only be called into question, by way of an election petition, filed in accordance with the provisions, and the mode and manner, as set out in the Election Commission Act." In view of the judgments referred to above, the present writ petitions have not merit. The same are accordingly dismissed." Faced with such situation, the learned counsel for the petitioners argued that non rotation of the wards is not a ground to challenge the election by way of election petition after the election is complete. Therefore, such rotation of wards can be challenged by the petitioners at this stage before the elections are held. It is also argued that since elections schedule has not been published, therefore, it can not be said CWP No. 8753 of 2012 5 that election process has started.
This Court in Lakhbir Singh Sehmee's case (supra) has considered the question as to when election process starts. This court has placed reliance upon Section 7-A of the Act. A Full Bench of this Court in Prithvi Raj vs. State Election Commission, Punjab and others, AIR 2007 P&H 178 has held that the jurisdiction of this Court stands barred, when a notification under Section 13-A of the Punjab Municipal Act, 1911 is issued. Section 13-A of the Municipal Act, 1911 is pari materia to Section 7-A. Therefore, the writ petition after the publication of notification under Section 7-A of the Act is not maintainable.
The Supreme Court in Anugrah Narain Singh's case (supra) commented adversely when the High Court intervened in the election process when the same was underway. It observed:
35. .......Barely one week before the voting was scheduled to commence, the Court decided to intervene in the matter regardless of the repeated warnings given by this Court in a number of earlier decisions. The Court decided to intervene in the matter and stop the election process while it was nearing completion. In Lakshmi Charan case (1985) 4 SCC 689, it was held that the Court should not intervene even when the elections were imminent. Here, the election was well under way."
The elections must be held on the due date. The elections are to completed till the second week of June 2012. Any intervention at this stage, when the elections are imminent, shall disrupt the election process. The election disputes can be raised after completion of elections. Even if there is no ground to challenge the rotation of wards by way of election petition, the petitioners can very well challenge the rotation of wards in any other appropriate forum including this Court in a writ petition after the elections CWP No. 8753 of 2012 6 are completed.
In this view of the matter, We do not find any merit in the present writ petition.
Dismissed.
(HEMANT GUPTA) JUDGE (A.N. JINDAL) 10.05.2012 JUDGE reena/Vimal