Punjab-Haryana High Court
Inderjit vs State Of Punjab And Another on 15 February, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of Decision: 15.02.2012
(1) LPA No. 1294 of 2010
Inderjit .......Appellant
vs.
State of Punjab and another .......Respondents
Present: Mr. Sarup Singh, Sr. Advocate, with
Mr. H.S.Sethi, Advocate, for the appellant.
Mr. H.P.Verma, Addl. AG, Punjab,
for respondent No.1
Mr. Anil Sharma, Advocate,
for respondent No.2
(2) CWP No. 15518 of 2010
Dev Raj Garg .......Petitioner
vs.
State of Punjab and ors .......Respondents
(3) CWP No. 15515 of 2010
Ashok Kumar Mittal .....Petitioner
vs.
State of Punjab and ors .....Respondents
(4) CWP No. 15977 of 2010
Telu Ram Bansal .....Petitioner
vs.
State of Punjab and ors .....Respondents
(5) CWP No. 16000 of 2010
Smt. Vippen Khurana and ors .....Petitioners
vs.
State of Punjab and ors .....Respondents
Present: - Mr. G.S.Gill, Advocate for the petitioners
Mr. H.P.Verma, Addl. A.G., Punjab
for respondents.
(6) CWP No. 17672 of 2010
Surinderpal .......Petitioner
vs.
The State of Punjab and ors .......Respondents
(7) CWP No. 16272 of 2010
Dayal Singh and another .......Petitioners
vs.
The State of Punjab and ors .......Respondents
Present: - Mr. Malkeet Singh, Advocate for the petitioners
Mr. H.P.Verma, Addl. A.G., Punjab
for respondents.
(8) CWP No. 15791 of 2010
Kamlesh Rani and another ........Petitioners
vs.
State of Punjab and ors .......Respondents
Present: - Mr. Jaskirat Singh Sidhu, Advocate for the petitioners
Mr. H.P.Verma, Addl. A.G., Punjab
for respondents.
(9) CWP No. 15782 of 2010
Surender Kumar and another ....Petitioners.
vs.
State of Punjab and ors .....Respondents.
Present: - Mr. Akshay Bhan, Advocate for the petitioners.
Mr. H.P.Verma, Addl. A.G., Haryana
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
HEMANT GUPTA, J.
This order shall dispose of LPA No.1294 of 2010, CWP Nos.15518 of 2010, 15515 of 2010, 15977 of 2010, 16000 of 2010, 17672 of 2010, 16272 of 2010, 15791 of 2010, 15782 of 2010, challenging the reservation of wards said to be contrary to Section 8 of the Punjab Municipal Act, 1911 (for short 'the Act') and the Delimitation of Wards of Municipalities Rules, 1972 (for short 'the Rules').
The facts are taken from LPA No.1294 of 2010 for facility of reference. The said appeal arises out of an order passed by the learned Single Judge on 08.09.2010, whereby the writ petition filed by the appellant was dismissed. In the said case, the elections to Nagar Panchayat, Raja Sansi constituted under Section 4 of the Act with 13 wards, were due in the month of October, 2010 after completion of 5 years of its tenure. In terms of Section 8 of the Act, wards are to be reserved for Women, Scheduled Castes and Backward Classes. Section 8 was substituted vide Punjab Act No.11 of 1994 consequent to insertion of Chapter IXA in the Constitution of India by 74th Amendment w.e.f. 01.06.1993.
The relevant provisions of the Constitution of India and the Act are as under:
Constitution of India "243T. Reservation of seats - (1) Seats shall be reserved for the Scheduled Castes and the 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 may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third, of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(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."
Punjab Municipal Act, 1911
8. Reservation of seats. - 1["8(1) In every Municipality, out of the total number of elected members determined under sub-section (3) of section 12, the State Government shall, by notification, reserve -
(a) such number of seats for the Scheduled Castes as may be determined by the State Government, subject to the condition that 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 bears to the total population of that area bears to the total population of that area, and, such seats may be allotted by rotation to different constituencies to be known as wards in the Municipality.
(b) one seat for the Backward Classes, and, such a seat may be allotted by rotation to different constituencies to be known as wards in the Municipality.
(2) Not less that one-third of the total number of seats reserved under clause (a) of sub-section (1) shall be reserved for women belonging to the Scheduled Castes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies to be known as wards in the Municipality.
Explanation, - In this section the expression, -
(a) "Scheduled Castes" shall have the meaning assigned to them in clause (24) of Article 366 of the Constitution of India; and
(b) "Backward Classes" means the Backward Classes as the State Government may, from time to time, declare by issuing a notification in the Official Gazette."
The Delimitation of Wards of Municipalities Rules, 1972 have been promulgated for carving out wards in a Municipality. The Rules contemplate for constituting of a Delimitation Board by the Government for each Municipality. It is the duty of the Board to divide the Municipality into such number of wards, as may be necessary having regard to the number of elected members determined by the State Government for each of the Municipality and the number of seats reserved for members of the Scheduled Castes, Backward Classes and Women. Rule 5 deals with procedure and powers of the Board, whereas Rule 6 contemplates the principles for delimitation of wards of Municipality. Rule 6 as far as is relevant for the present case reads as under:
"6. Principles for delimitation of wards of Municipality - The following principles shall be observed by the Board in the delimitation of wards of a Municipality, namely:-
(a) All wards shall as far as practicable, be geographically compact areas, and in delimiting them due regard shall be had to physical features, existing boundaries of administrative units, if any, facilities of communication and public convenience;
(b) Each Municipality shall be divided into wards in such manner that the population of each ward, as far as practicable, is the same throughout the Municipality, with a variation upto ten per-cent, above or below the average population figures;
(c) Wards in which seats are reserved for the Scheduled Castes, shall be located, as far as practicable, in those areas where the proportion of their population to the total population of the Municipality is the larges and such seats shall be allocated by rotation to different wards in the Municipality;
(d) Seats numbers reserved for women (including number of seats reserved for women, if any, belonging to Scheduled Castes) by Government, shall be kept reserved for women and such seats shall be allotted by rotation to different wards in the Municipality; and
(e) One seat reserved for Backward Classes by Government, shall be kept reserved for the Backward Classes which shall be located where their population in the Municipality is the larges and such seat shall be allotted by rotation to different wards in the Municipality.
xxx xxx xxx"
The Board is required to send the Scheme for Delimitation of Wards to the State Government for consideration. Such draft Scheme is published in the Official Gazettee for eliciting objections and suggestions of the affected persons of the Municipality. Thereafter, the final notification is published. The State has also published the Determination of the number of Elected Members and Reservation of Offices of Presidents of Municipalities Rules, 1994. Such Rules contemplated determination of the number of elected members and reservation of offices of Presidents. The relevant Rules read as under:
"(4) Not less than one third (including the number of seats reserved for women belonging to scheduled castes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies to be know as wards in the Municipality as specified in Schedule II;
Provided that every third ward of the total number of seats allotted to a Municipality, shall be allotted to the women;
Provided further that while allotting every third ward of the total number of seats to women, the wards reserved for Scheduled Castes and Backward Classes, as provided in sub-rule (1) and (2) shall not be counted.
5. The seats reserved for women belonging to Scheduled Castes as provided in sub-rule (3), shall be allotted by rotation from amongst the seats reserved for Scheduled Castes under sub-rule (1) keeping in view the provisions of rub-rule (4).
Provided that the principle of rotation, shall not be applicable where Delimitation of Wards of a Municipality has been done under the provisions of clause (ii) of rule 4 of the Delimitation of Wards of Municipality Rules, 1972."
In terms of such provisions, the State Government has published a notification dated 03.08.2010 (Annexure P-1) notifying wards for the Scheduled Castes; Women; Backward Classes and for the General category voters. In respect of Raja Sansi, Nagar Panchayat, Ward Nos.1, 10 & 12 have been reserved for Scheduled Castes; Ward Nos.2 and 8 for Scheduled Castes- Women; Ward Nos.3, 5 & 9 for Women; Ward No.11 for Backward Classes and Ward Nos.4, 6, 7 & 13 for General category.
The grievance of the appellant is that in the previous elections conducted in the year 2005, Ward No.11 was reserved for Backward Classes and in the second election again, the said Ward has been reserved for Backward Classes. Therefore, though the notification recites that the seats have been reserved by rotation for holding second election, but as a matter of fact, one ward reserved for Backward Classes was not rotated, therefore, the mandate of the Constitution contained in Article 243T, Section 8 of the Act and the Rules has been violated.
The writ petition was dismissed by the learned Single Judge noticing that except Ward No.12, reserved for the candidates belonging to Scheduled Caste (Men) category, Ward No.11 reserved for the candidate belonging to Backward Class category and Ward No.6 reserved for the candidates belonging to General category, all the wards have been rotated. It was, thus, observed that 10 wards out of 13 wards have been rotated, therefore, the mandate of provisions of Article 243T of the Constitution of India has been followed in letter and spirit. The rotation of wards depicts that an effort has been made to achieve optimum level. The rotation of wards cannot be with exactitude. The viable option has been exercised.
Aggrieved against the said order passed by the learned Single Judge, the appellant is in appeal before this Court.
A short affidavit has been filed on behalf of the State Government in appeal. In the said affidavit, it has been averred that while amending Constitution, the Parliament was concerned about giving adequate representation tot he Scheduled Castes and women, therefore, the reservation of such category is mandatory. But issue of ear-marking all these reserved seats was left to the wisdom of the State. It is asserted that rotation of wards is not mandatory.
Mr. Sarup Singh, learned counsel for the appellant, has vehemently argued that Ward No.11 has been again reserved for Backward Class and, thus, there is no rotation of the ward, as is contemplated under Article 243T of the Constitution of India, Section 8 of the Act and the Rules. Reliance is placed upon Smt. Bachchan Devi & another Vs. Nagar Nigam, Gorakhpur & another AIR 2008 SC 1282 and Sarla Goel & others Vs. Kishan Chand (2009) 7 SCC 658 to contend that the provision of rotation of ward is mandatory keeping in view the object of such reservation. It is contended that the same ward could not be reserved for Backward Class and another ward should be reserved for Backward Class category.
Mr. Gill, learned counsel representing some of the writ petitions, has argued that vide notification dated 09.04.2008, Schedule II of Determination of the Number of Elected Members and Reservation of Offices of Presidents of Municipalities Rules, 1994 has been amended, whereby the State Government has been given liberty to notify the wards reserved for women before every General elections. It is, thus, contended that such provision gives unbridled and uncontrolled powers to the State Government to reserve wards for women in furtherance of its political objections before every elections, therefore, such power is not valid.
On the other hand, learned counsel for the respondent-State has submitted that in terms of Article 243(T) and Section 8 of the Act, reservation of the wards for Scheduled Caste, Backward Class and the women is mandatory, which is evident from the expression 'shall' used in first part of Article 243T and Section 8 of the Act, whereas in respect of rotation of seats, the expression used "seats may be allotted by rotation". Therefore, use of different expressions in the same provision makes it explicit that the rotation of the wards is a directory provision. Though the provision is directory, but all the wards except three have been rotated. In Ward No.11, the total population is 1077 out of which 60 are Scheduled Castes, 549 are Backward Classes and 468 are General category. Therefore, Ward No.11 has the largest population of Backward Classes voters. The next largest Backward Class voters are in ward No.9 i.e. 469 out of 991 total voters, but the said ward was meant for general category in the last elections and now reserved for women. The next ward of largest Backward Classes is Ward No.3, where the population of Backward Classes voters is 468 out of 1024. Such ward was for General category in the last elections and is now reserved for women. Therefore, keeping in view the largest population of the Backward Classes in Ward No.11, the same was reserved for the Backward Class.
It is further argued that mere fact that another option was available with the State Government to rotate the wards will not make the reservation of wards notified by the State Government as illegal or arbitrary, more so when there is no allegation of any mala fide. Since the power of reservation has been exercised in an appropriate manner on a reasonable basis, therefore, this Court in exercise of power of judicial review will not interfere with the decision, but is required to examine only decision making process. Therefore, the Wards reserved were rightly not interfered with in the writ jurisdiction of this Court.
We have heard learned counsel for the parties at length, but do not find any illegality in the decision making process.
Firstly, we do not find any merit in the argument raised by Mr. Gill that the power conferred on the State Government to notify the seats to be reserved for women including the women belonging to the Scheduled Castes before every General Elections means that such provision is arbitrary. The existence of a provision is distinct from exercise of powers of reservation of seats. It will be a question of fact in each case, whether the State Government has acted in an arbitrary manner or with mala-fide objectives in mind while reserving the seats for the women including Scheduled Castes Women. In the present case, there is no allegation much less proof that reservation of wards is actuated by some mala-fides or with a view to oust any particular candidate from contest. It will be a question of fact in each case, which may be required to be examined at the relevant stage. As a matter of fact, every reservation is an exception of equality cluase enshrined in Article 14 of the Constitution of India. Therefore, we do not find any merit in the argument raised by Mr. Gill, which may warrant interference against the reservation of wards.
Section 8 of the Act is pari-materia with the provisions of Article 243T of the Constitution of India. 1st Part of Sub Section (1) (a) of Section 8 deals with reservation of seats for the Scheduled Castes, whereas 2nd Part of such Clause (a) deals with rotation of such seats. Sub-clause (b) deals with reservation of rotation and seats of Backward Classes and sub- Sections (2) & (3) deal with reservation of seats for women and women belonging to the Scheduled Castes. Part IXA introduced by 74th amendment in the Constitution of India was to ensure reservation of women and Scheduled Castes at the grass roots i.e. At the Panchayat and Municipal level. Therefore, the reservation of seats for women, Scheduled Castes and Backward Classes alone is mandatory. How such seats are rotated is left to the State Government with play in joints as there may be situations, where rotation of all the seats may not be feasible keeping in view the population of the Scheduled Castes and Backward Classes being concentrated in a pocket of a Municipality.
The judgments referred to by the learned counsel for the appellant, are not helpful to the argument raised. In Smt. Bachchan Devi's case (supra) it has been held that the Courts must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other. The relevant extract read as under:
"12. Mere use of word 'may' or 'shall' is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue.
xxx xxx xxx
28. The use of the words `shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid. On the other hand, it is not always correct to say that when the word `may' has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid."
The Hon'ble Supreme Court has held that two considerations for regarding a rule as directory are as under:
"30. ...Two main considerations for regarding a rule as directory are: (i) absence of any provision for the contingency of any particular rule not being complied with or followed, and (ii) serious general inconvenience and prejudice to the general public would result if the act in question is declared invalid for non-compliance with the particular rule.
31. ...The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word `shall' or `may' depends on conferment of power. Depending upon the context, 'may' does not always mean may. 'May' is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes his duty to exercise that power. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty.
33. The ultimate rule in construing auxiliary verbs like `may' and `shall' is to discover the legislative intent; and the use of words `may' and 'shall' is not decisive of its discretion or mandates. The use of the words `may' and `shall' may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.
34. Obviously where the legislature uses two words may and shall in two different parts of the same provision prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is not decisive. The power of court to find out whether the provision is directory or mandatory remains unimpaired."
In Sarla Goel's case (supra) provisions of Section 27 of the Delhi Rent control Act, 1958 were held to be mandatory i.e. On the failure of landlord to accept rent, it was mandatory for the tenant to deposit the rent with the Rent Controller. It was held as under:
"29. In other words, taking into consideration the object of the Act and the intention of the Legislature and in view of the discussions made herein earlier, we are of the view that the word "may" occurring in Section 27 of the Act must be construed as a mandatory provision and not a directory provision as the word "may" , in our view, was used by the Legislature to mean that the procedure given in those provisions must be strictly followed as the special protection has been given to the tenant from eviction. Such a cannon of construction is certainly warranted because otherwise intention of the Legislature would be defeated and the class of landlords, for whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them.
The Court also referred to the judgment in Mohan Singh Vs. international Airport Authority of India (1997) 9 SCC 132, wherein it was held to the following effect:
"17. ...General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that Legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks the achieve. Therefore, it is necessary to ascertain the intention. The word "shall" is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of Court to try to get at the real intention of the Legislature by carefully analysing the whole scope of the statute or section or a phrase under Consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the Legislature and not always upon the language in which the intent is couched. The meaning and intention of the Legislature would govern design and purpose the Act seeks to achieve."
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 de- reserved. Therefore, we do not find that any prejudice has been suffered by the appellant/petitioners by reserving Ward No. 11 for a backwad class candidates.
It may be noticed that election to the Nagar Panchayat, Raja Sansi were due in October, 2010, but the same could not be completed for the reason that there was challenge to the delimitation of wards before this Court. Therefore, while dismissing the appeal as well as all the writ petitions, we direct the State Government to notify the elections to the Nagar Panchayat Raja Sansi and other Municipalities within one month.
(HEMANT GUPTA)
JUDGE
15.02.2012 (A.N.JINDAL)
Vimal/ds JUDGE