Rajasthan High Court - Jaipur
Azizulla Khan And Ors. vs State And Ors. on 6 September, 1990
Equivalent citations: AIR1991RAJ101, 1991(1)WLC132
ORDER M.R. Calla, J.
1. The following cases involving common and identical questions with regard to pre-election matters in relation to the Municipal Boards and Municipal council were heard together and the same are being decide d by this common judgment. The details of the cases are as under:--
S. No. No. of cases Title of cases Date of presentationl Municipal Board/ Council
1.
SBCWP No. 3286/90 Azizulla Khan v. State & Ors.
31-7-90 Tonk
2. No. 3428/90 Sabir Ahmed Qureshi v. State & Ors.
10-8-90 Jaipur
3. No. 3424/90 Anil Shah v. State & Ors.
10-8-90 Jaipur
4. No. 3473/90 Ram Narain v. State 16-8-90 Kota
5. No. 3448/90 Abdul Zaleel v. State 16-8-90 Kola
6. No. 3431/90 Kamal Kumar v. State of Raj & Ors.
13-8-90 Kota
7. No. 3372/90 Nathu Lal v. State & Ors.
4-8-90 Chhabra (Kota)
8. No. 3452/90 Dharamveer Agrawal v. State 16-8-90 Alwar
9. No. 3432/90 Chandra Kant 13-8-90 Bharatpur Sharma v. State
10. No. 3445/90 Dalu Ram v. State & Ors.
13-8-90 Pilani (Khunjhunu)
11. No. 3449/90 Rafiq Mohd v. State &Ors.
16-8-90 Sunel (Distt. Jhalawar)
12. No. 3441/90 Jagannath Sharma v. State & Ors.
16-8-90 Narayana (Distt. Jaipur)
13. No. 3390/90 Rajendra Kumar v. State & Ors.
16-7-90 Gangapur City (Distt. Sawaimadhopur)
2. When these writ petitions came up before the Court, the copies of the petitions were made available to Shri M.I. Khan, Addl. Advocate General for the State of Rajasthan and for other respondents who were functionaries of the Government. It was not considered necessary to issue notice to the respondents other than the State functionaries and the Municipal Boards/ Councils who had been impleaded as respondents in certain cases and with the consent of both sides, the matters were finally heard. A detailed reply was filed on behalf of the respondents by Shri M.I. Khan in one of the cases, namely Azizullah v. State (S.B. Civil Writ Petition No. 3286/1990) and Shri M.I. Khan was also permitted to make submissions with reference to records to meet the objection pointed out on behalf of the petitioners and the grievances raised by them in the various petitions.
3. The draft proposals for the demarcation of wards had been issued and published in the month of April, 1990 and the same had been finalised in the month of June, 1990, for holding elections to various Municipal Boards/Councils in Rajasthan. It is a dismal fact that while preparing, issuing and publishing the draft proposals and finalisation of the same, due care and caution was not taken and in several cases the numbers of wards were changed arbitrarily; due regard was not given to the strength and density of voters in the councils/boards and wards therein. The grievances in the formation of wards, the change of numbers of wards in the name of delimitation of wards in an arbitrary manner even without inclusion or exclusion of areas therein, in certain cases numbering and reserving particular wards without any rational and lawful justification and the statement made before a Bench of this Court on 29th November, 1989 on behalf of the Government in S.B. Civil Writ Petition No. 4841/1988 Ram Saran Antyanuprasi v. State, have given rise to the mushroom growth of writ petitions before the issue of the notification for election so much so that the cases were filed even on 17th August, 1990 while all these matters were being heard. The order dated 29th November, 1989, passed in S.B. Civil Writ Petition No, 4841 / 88 is reproduced as under:--
"Hon'ble Bhargava, J.
Mr. M. C. Jain Kagzi for the petitioner; Mr. K.L. Pareek, for the State; Mr. A.K. Bhandari, for the Municipal Council.
This writ petition has been filed on 19-12-1988 with the prayer that the State Govt. be directed to undertake census for the municipal areas and of all wards separately preparatory to fresh delimitation of municipal wards; to take active steps for delimitation of the Jaipur Municipal Wards and to give the same proper publicity and further that the voters list for every ward should be revised before the Municipal Elections are held.
Notices were issued to show cause as to why the writ petition be not admitted and disposed of. The respondents have been served but they have not filed any reply.
Learned counsel for the respondents has brought to my notice the Rajasthan Municipalities (Amendment Ordinance, 1989 (Ordinance No. 9 of 1989) published in the Rajasthan Gazettee, dated 12-10-89, amending S. 5 of the Rajasthan Municipalities Act (Act No. 38 of 1959) providing that there shall be a municipal Corporation for an area having a population of more than 5 lacs and therefore, there will be no elections for the Municipal Council and now as and when the elections will be held they will be held for the Jaipur Municipal corporation. Obviously, there will be a fresh delimitation of wards and the procedure prescribed under the Act and the Rules will be followed, therefore, no directions need be issued at this stage. It is expected that the government will expedite fresh delimitation and the procedure prescribed and hold elections at the earliest.
With these observations, the writ petition is disposed of.
4. The Rajasthan Municipalities (Amendment Ordinance, 1989) (Ordinance No. 9 of 1989) published in the Rajasthan Gazette dated 12th October, 1989, later on, became an Act as this Ordinance was passed by the Rajasthan Legislative Assembly and as per this Amending Act of 1990, the following amendments were made:--
"5. What local area may be declared to be a municipality:-- (1)Any local area which comprises-- !
(a) a city or a town or two or more neighbouring towns with or without any village, suburb or land adjoining thereto, or
(b)a village or suburb or two or more neighbouring villages and suburbs, or
(c) the whole or any part of a panchayat circle as defined under the Rajasthan Panchayat Act, 1953 may be declared a municipality and classified as follows:--
(i)for an area having a population of twenty thousand or more but not more than one lakh, a municipal board;
(ii) for an area having a population of more than one lakh but not more than five lakhs, a municipal council; and
(iii) for an area having a population of more than five lakhs, a municipal corporation.
(2) Notification under Section 4 shall be issued names are constituted to be one municipality, the name of the municipality shall be determined by the State Government.
(3) Notwithstanding anything contained in Sub-section (1) and (2), the State Government may provide for the constitution of--
(i) a nagar-panchayat for a transitional area having a population of less than ten thousand but not less than five thousand.
(ii) a municipality for an urban area having a population of less than twenty thousand but not less than ten thousand;
Where such an area is of historical or industrial importance or is important for trade, tourism or pilgrimage.
9. Composition of boards:-- (1) Subject to the provisions contained in the succeeding Sub-sections, every board shall consist of such Bumber of seats as may be fixed by the State Government from time to time by notification in the Official Gazette.
(2) In so fixing the total number of seats for a board, the State Government shall specify the number respectively of general seats and of seats reserved for members of the scheduled castes or for members of the scheduled tribes or for both as the State Government may in each case determine.
(3) The number of seats reserved as aforesaid shall, in relation to the total number of seats fixed for a period, bear the same proportion as the population of the scheduled castes or scheduled tribes in the municipality bears to the total population thereof and such reservation shall be operative until the provisions of the Constitution relating to the reservation of seats for scheduled castes and scheduled tribes in the State Legislative Assembly cease to have effect.
13. Division into wards:-- (1) For purposes of elections to a board; a municipality shall be divided into such number of wards as is equal to the total number of seats fixed for the board under Sub-section (2) of section 9.
(2) The representation of each ward shall be on the basis of population of that ward and shall, as far as possible, be in the same proportion as the total number of seats for the municipality bear to its population.
(3) Notwithstanding anything contained in this Act, the division of wards for the purposes of holding election of Municipal Board or Municipal Council, shall be made by the State Government on the basis of latest Assembly Electoral Rolls, during the year, 1990.
14. Delimitation order:-- (1) The State Government shall by order determine--
(a) the wards in which each municipality shall be divided for purpose of elections to the board;
(b) the extent of each ward;
(c) the number of seats, if any, reserved for members of the Scheduled Castes or Scheduled Tribes, as the case may be, in any ward.
(d) the wards for women candidates by rotation including, women of Scheduled Castes/ Scheduled Tribes.
(2) The draft of the order under Sub-section (1) shall be published for filing objections thereto within a period of not less than twenty-one days and a copy of the same shall be sent to the board concerned for comments.
(3) The State Government shall consider any objection and the comments received under Sub-section (2) and the draft order shall, if necessary, be amended, altered or modified accordingly, and thereupon it shall become final".
5. Notification dated 5th April, 1990, the Rajasthan Municipalities Fixation of Seats (For Women Belonging to SC/ST and Determining of Wards for Women by Rotation) Rules, 1990 was issued. Rule 3 thereof is reproduced as under:--
"3. Determination of wards/seats for women by rotation:
As far as allotment of wards for women by rotation, requisite number of wards shall be determined as per the following manner.
Subject to any directions of the State Govt. every third ward of a Board shall be reserved for women, subject to maximum of 30% (including the number of seats reserved for women belonging to SC/ ST) and this process shall rotate in succession.
Provided further that allotment of wards for women belonging to the SC or the ST as the case may be, shall be determined in the aforesaid manner only out of the seats reserved under Sub-section (3) of Section 9.
For the purpose of facilitating the implementation of the provisions of these rules, the State Govt. may by order given such directions as appears to it necessary for the removal of any difficulty for limited period up to the last date of counting".
6. In view of the aforesaid amendment in the Rules, the Wards had to be reserved for women belonging to SC/ST and women in general and, as per Rule 3 every third ward was to be reserved for women subject to a maximum of 30% (including the number of seats reserved for women belonging to SC/ ST). Rule 3 has been reproduced as above.
7. Briefly stated, the case set up by the petitioners in each of the cases and the case of the respondents put up before the Court in answer thereto is as under:--
(1) S.B. Civil Writ Petition No. 3286/1990 (Azizullah Khan v. State of Rajasthan)
8. In this case, the petitioner who is a resident of Tonk has come with the grievance that the draft proposal for demarcation of wards was issued vide notification dated 20th April, 1990 and the same was published on 20th April, 1990. In this draft proposal, Annexure/1, the wards reserved for women were 3, 6, 9, 12, 15, 18, 21, 24, 27, 30 and 33 out of 35 wards in all, but in final publication ward 33, which was reserved for women was dereserved and ward No. 32 was reserved for women; in draft proposal ward No. 11 was reserved for scheduled caste in addition to other wards so reserved, but in the final publication Ward No. 11 was dereserved and ward No. 3 was reserved for Scheduled Caste Women, although the population of Scheduled Castes in Ward No. 11 is more. It was submitted that in the Municipal Board, Tonk right from the inception till now first and last wards have always met at their boundaries; but this time, the circle has not been completed; boundaries of wards Nos. 1 and 35 did not meet at their ends and that wards have been numbered in an arbitrary manner which is detrimental to minorities. Objections were submitted vide application dated 16th May, 1990 and personal hearing was also sought to support these objections vide application dated 26th May, 1990, but the same was not considered and without considering these objections, final publication was made vide notification dated 1st June, 1990 published on 8th June, 1990. It was also submitted that total number of voters in the Municipal Board, Tonk is 55,631 and total wards are 35 and, therefore, each ward should have as many as 1589 voters and 10% of the same comes out to be 159 and, therefore, the number of voters in each ward could be 10% plus-minus to 1589, but in Wards Nos. 9, 16, 23 and 29 the number of voters are beyond the permissible limits i.e. 1783, 1759, 1756 and 1780 respectively and likewise in Wards Nos. 24 and 31 number of voters is below the permissible limit i,e. 1366 and 1407. Shri Surendra Vyas, learned counsel appearing on behalf of the petitioner submitted that besides the case that the principle of reserving every third ward for women has been violated by reserving Ward No. 32 for women instead of 33, it is a case of violation of Section 14 of the Rajasthan Municipalities Act inasmuch as the draft proposals were prepared by the Municipal Boards rather than the Government and such drafts were not sent to the Municipal Boards for comments; no comments were sought and the objections were not considered.
9. Shri Khan has submitted that wards have been numbered continuously and there is no law that the circle should be completed so that the boundaries of the first and the last ward may meet. He has also submitted that the Rule of reserving every third ward for women has not been violated except while reserving Ward No. 32 for women and that had to be done because Ward No. 33 had already been reserved for scheduled caste according to the population strength of scheduled caste voters in Ward No. 33 and once Ward No. 33 was already reserved for scheduled caste, another ward had to be reserved for women and, whereas this multiple of three is not available for reservation of women on account of it being already reserved for scheduled caste the Deptt. had to look for the next ward on ascending side and since in Ward No. 34 also the population of scheduled caste voters was more, the Department had to follow the descending order and accordingly, Ward No. 32 was reserved for women instead of 33. He has further submitted that in view of the proviso under Rule 3 of the Municipalities Fixation of Seats (for women belonging to SC/ST and Determining the Wards for Women by Rotation) Rules, 1990, once a ward had been reserved for SC under Sub-section (3) of Section 9, it was no more available for reservation for women. However, he could not explain as to why Ward No. 11 was not reserved for scheduled caste, although the population of scheduled caste voters in Ward No. 11 was more, and, therefore, even if Ward No. 3 had been reserved for scheduled caste women why Ward No. 11 could not be reserved for SC -- where the population of SC voters was more. Ward No. 1, which was notified in the draft proposal as reserved for scheduled caste being kept intact even after reserving Ward 3 for women Ward No. 33 could be reserved for SC women instead of Ward No. 3 and, in that case, the percentage of quota for SC, ST women could be maintained and the principle of reserving every third ward for women could also be maintained. Shri Khan has also submitted that the wards have not been demarcated with any idea to cause any prejudice to the minorities and the allegation that the principle of 10% plus minus with regard to number of voters in each ward keeping in view the total number of voters in the Municipal Board, Tonk and the total number of wards is as per the figures given by the petitioner himself, total number of voters in each ward should have been 1589 with 10% plus-minus. 10% of 1589 comes out to be 159 and, therefore, the number of voters could be 1430 to 1748, whereas in Wards Nos. 9, 16, 23 and 29 the number of voters is 1783, 1759, 1756 and 1780, which is in close proximity with 1748 and likewise in Wards Nos. 24 and 31 where the number of voters 1366 and 1407 -- is again in close proximity with 1430. Shri Khan also produced before me the relevant file to show that the draft proposal was sent to the Municipal Board, comments were called for and received and objections had also been considered and, it is absolutely wrong to suggest that no comments were sought. He has submitted that while preparing the draft, even if the services of the staff of the Municipal Board were made use of, they had still acted on behalf of the Government as an agency of the Government and no exception can be taken if the Election Department has utilised the services of the staff of the Municipal Board, Tonk while preparing the draft notification.
(2) Shabir Ahmed Khan v. State of Rajasthan (S. B. Civil Writ petition No. 3428/ 1990): Jaipur.
10. The petitioner has come with the case that for Municipal Council, Jaipur, there are 50 wards in all. In the draft notification Wards Nos. 22 and 23 were reserved for SC and the same were made general in the final notification and Ward No. 19, which was general, was reserved in the final notification dated 8th June, 1990 for scheduled caste. It has been further alleged on the basis of the data submitted through an additional affidavit dated 16th August, 1990 that in Ward No. 38, the total number of voters is 13, 428, whereas the total number of voters of ST in this ward is only 800 which comes out to be 6% only and yet this ward which in the draft notification was a general ward has been reserved in the final notification as a ward reserved for ST. He has submitted that the wards have been reserved and dereserved in a wholly arbitrary manner, no rationale has been followed and the objections which have been filed by the petitioner have not been considered, and further that he had also applied for the copy of the objection, if any, filed against keeping Ward No. 19 as a general ward; but the same was not made available to him.
11. Shri Bandhu appearing on behalf of the petitioner invited my attention to the order dated 19th November, 1989, passed by this Court in S. B. Civil Writ Petition No. 4841/1988 about which reference has been made in para 11 of the writ petition and submitted that once the Government itself had made a statement before this Court with reference to the amendment made in Section 5 of the Rajasthan Municipalities Act, 1955 that there should be a Municipal Corporation for an area having population of more than 5 lacs and, therefore, there will be no elections for the Municipal Council and now as and when the elections will be held, they will be held for Jaipur Municipal Corporation; it was not open for the Government to hold elections for Municipal Council and the Government cannot be allowed to act contrary to a statement made before this Court and, therefore, in no case any elections for Municipal Council can be allowed to be held and, the election can be held for Municipal Corporation only because the population of Jaipur, even as per the census figures of 1981, is more than 9 lacs and, as such, the elections should be held for Jaipur Municipal Corporation, rather than for the Municipal Council, and the Government is bound by the statement made before this Court on the basis of which it obtained the order dated 29th November, 1989 in S. B. Civil Writ Petition No. 4841 of 1988.
12. Shri Khan submitted that Wards Nos. 22 and 23 had to be dereserved and made general because of lesser number of voters belonging to SC in Wards Nos. 22 and 23, and, so far as Ward No. 19 is concerned, he submitted that on account of inclusion of certain area in Ward No. 19, the percentage of ST voters increased in this Ward from 6% to 9%, which was the maximum and he submitted that the inclusion of area of Khora Nagoriyan in Ward No. 19 resulted in increase of the number of voters of Scheduled Tribes in this ward to 9%. This position was contested by Shri Bandhu with the aid of final notification and, he pointed out that in Ward No. 19 there is no area like Khora Nagoriyan. Confronted with this situation, Shri Khan submitted that he had wrongly stated about the inclusion of Khora Nagoriyan in Ward No. 19. In fact, it was some other area which was included in Ward No. 19 resulting into increase in the percentage of ST voters therein. He, however, failed to show any material in support of his submission as to how the percentage of Scheduled Tribe voters increased in Ward No. 19. While answering the allegations of the petitioner regarding objections against keeping Ward No. 19 to be a general ward, it was pointed out by Mr. Khan that the only objection which was received against Ward No. 19 was from one Shri Atma Ram and on the basis of this objection, a decision was taken to reserve Ward "No. 19 for ST. Regarding the submission of the petitioner with reference to the contents of the order dated 29th November, 1989, Shri Khan submitted that the Government was not bound by the statement made before the Court on 29th November, 1989 and that in want of corresponding amendment in the Rajasthan Municipalities Act, there is no question of holding election for Jaipur Municipal Corporation merely because the amendment in Section 5.
3. Anil Shah v. State of Rajasthan (S. B. Civil Writ Petition No. 3424/1990): Jaipur.
13. In this case, the petitioner has come with the grievance that there was an unequal distribution of voters and Ward No. 11 was renumbered as Ward No. 12 and Ward No. 22 was renumbered as 21 and instead of reserving at least 5 wards for SC/ST Women, only two wards had been reserved for Scheduled Caste Women. Thus, the Election Department has acted arbitrarily in the matter of numbering the wards and changing the number of wards as also in the matter of reserving the wards and further that the petitioner had filed objections against the draft notification, but the same were not considered. Shri Khan has submitted that Ward No. 11 had to be renumbered as 12 and 22 as 21 on the principle of contiguity. There is no unequal distribution of voters and Shri Khan has submitted that there are in all 50 wards and, therefore, not more than 15 wards in all could be reserved for women including SC/ST women. Since 13 wards had been reserved for women, only two words could be reserved for SC women and the submission of the petitioner is not tenable.
4. S. B. Civil Writ Petition No. 3473/1990 Ram Narain v. State of Rajasthan: Kota
14. In this case, the petitioner has come with the case that there are 45 wards in the area of Municipal Council, Kota and while forming the wards there has been a lack of cohesion and these wards have been framed without application of mind. Objections were filed by the political parties, yet the same were not considered and the numbers of the wards have been given arbitrarily. It has been submitted that the numbering of the wards had assumed greater importance because under the new provisions every third ward was to be the ward reserved for women. It has been stated that Ward No. 15 had been shown in the draft notification as a ward reserved for women, but the same was dereserved and was converted into a ward for men. It was also submitted that the area of Rangwari and Raipura are outside the Municipal limits of Kota and it was so held by the Rajasthan High Court in the case of Jagannath v. Municipal Board, Kota. Mahaveer Nagar I, II and III are new colonies developed in Rangwari, yet the same have been shown to be a port of Municipal area while forming the wards and no colony which does not fall in the Municipal area could be included while forming the wards, for the purpose of elections in question. It was then submitted that according to the provisions of Section 5, as per the amended Act of 1990, there was no question of holding the elections for Municipal Council, Kota because the population of Kota has already exceeded 5 lacs and the same is about 6 lacs and as per the existing population Kota has to be divided in 65 wards and, if at all the elections are to be held they should be held for Municipal Corporation rather than the Municipal Council. While explaining these allegations Shri M. I. Khan produced the plan of the formation of wards and pointed out that as per the plan the new colonies Mahavir Nagar I, II and III have been developed in Anandpuri and Kesharpura which are very much in the Municipal limits of Kota and it is wrong to suggest that these colonies have been developed in Rangwari. Shri Khan submitted that as per this plan also Rangwari is outside the Municipal limit of Kota. The fact is that Mahavirpura I, II and III are not in Rangwari and the same are in the Anandpuri and Kesharpura within the Municipal limits. He further submitted that the wards have been formed on the principle of contiguity and Ward No. 15 was dereserved because the Ward 16 had been reserved for scheduled caste women and, it is wrong to suggest that wards have been framed without application of mind and it is wrong to suggest that the objections were not considered.
5. S.B.Civil Writ Petition No. 3448/ 1990 Abdul Zalil v. State: Kota
15. In this case, the petitioner has come with the allegations that delimitation order is illegal and arbitrary. Wards have not been named as per law. Previously Ward No. 27 namely Anandpuri was general ward and now Anandpuri has been included in Ward No. 26 and the same has been reserved for scheduled tribe and a comprehensive study of ward would show that in Anandpuri there are hardly 100 persons belonging to Scheduled Tribe. The representation of each ward should be on the basis of population, but no care has been taken to follow this principle. Ward No. 15 was reserved for women in the draft notification and Ward No. 16 was for scheduled caste, but numbers of wards have been changed arbitrarily and now Ward No. 16 which was reserved for scheduled tribe has been reserved for women and Ward No. 15 has been made a general ward, which is contrary to the principle that every third ward will be a ward reserved for women. Shri Khan's reply to the allegations was almost the same as in S. B. Civil Writ Petition No. 3470/1990. He has stressed that wards have been formed on the principle of contiguity.
6. S. B. Civil Writ Petition No. 3437/1990 (Kamal Kumar v. State of Rajasthan) (Kota)
16. In this case, the allegations are more or less the same as in the case of S. B. Civil Writ Petition No. 3448/1990 and it has been submitted that change in the number of wards in the final list is against the principles of Article 14 of the Constitution and that the Ward Nos. 15, 16 and 42 have been changed for collateral purposes and the list which was finally published is against the provisions of Article 14. Shri Khan's reply to allegations is the same as in S. B. Civil Writ Petition No. 3448/1990 and S. B. Civil Writ Petition No. 3470/1990.
7. S.B. Civil Writ Petition No. 3372/1990 Nathu Lal v. State (Chhabra) Kota.
17. The petitioner has alleged that after the issue of draft proposal notification dated 5th April, 1990, the respondents published the area and boundaries of the wards and in this final notification wards Nos. 3,6,9,12 and 13 were shown as reserved wards for women. The petitioner submitted that Ward No. 13 could not be reserved for women candidates and yet the same has been reserved for them. The petitioner has given the details of male and female voters and the percentage of the female voters in para 7 of the writ petition and on that basis the contention has been raised that those wards in which the percentage of female voters was maximum ought to have been reserved for women and, accordingly there was no justification to reserve Ward No. 13 for women because the percentage of female voters in Wards Nos. 4, 6 and 8, 10 and 12, 3, 9 and 11 being more viz. 52.75, 48.99, 48.97, 48.83, 48.57 per cent. The table is as under:--
Voters Percentage of Ward No. Mate Female Total Female voters
1. 501 443 944 46.92
2. 304 258 562 45.90
3. 395 377 772 48.83
4. 274 306 580 52.75
5. 497 426 923 46.15
6. &g 637 612 1249 48.99
7. 410 378 788 47.96 9 &11 648 646 1330 48.57 10 & 12 621 596 1217 48.97
13. 380 348 728 47.80
18. The first four out of these wards should have been reserved for women and these wards should have been numbered as wards divisible by three. But this principle has been given a go-bye and the wards have been reserved in a wholly arbitrary manner. It has also been argued that so far as total number of voters is concerned, there should not be a difference of 10% plus-minus. But there is more than 100% difference in the voters of the wards as there were only 562 voters in Ward No. 2 and there are 1330 voters in Wards Nos. 9 and 11, Likewise, there are 1249 voters in Wards Nos. 6 and 8 and 1217 voters in Wards Nos. 10 and 12 and, as such, the difference of voters is much more than 100%. It has further been argued that in the final publication of demarcation of the municipal wards of Chhabra, boundry limits of wards had not been changed from those which were notified in draft proposed in the notification issued in April, 1990 and without any change in the boundary limits, the wards have been renumbered and renumbering is not explained by any rational criteria and, thus, the wards which ought to have been reserved have been dereserved and those which ought not to have been reserved have been reserved. In reply to these allegations all that has been said by Mr. Khan is the principle of contiguity has been followed and no explanation has been given with regard to the difference of the total number of voters in certain wards to the extent of much more than 10% plus minus.
8. S. B. Civil Writ Petition No. 3452/1990 Dharamveer v. State of Rajasthan and others Alwar
19. In this case, it has been alleged that in the draft proposal notification Rule 8(1) of the Rajasthan Municipalities Registration of Electors Order, 1974 has not been followed and the notice was not displaced in form No. 2 at any conspicuous place, or two places in each ward; Municipal Council area has been divided into 40 wards out of which 10 wards have been reserved for women (general) two for SC women candidates, four wards for scheduled caste and one for scheduled tribe. No criteria has been followed with regard to population or the number of voters of scheduled caste and scheduled tribe women. In certain wards number of voters are two to four times more than other wards as would appear from schedule appended to the writ petition. Total number of voters in Ward No. 12 is only 1229, while in Ward No. 38, it is 2585, in Ward No. 23, it is 2978 and in Ward No. 32, it is 3203; in Ward No. 21, it is 3578 and in Ward No. 35, it is 3698, in Ward No. 1 it is 3943 and in Ward No. 24 it is 4494, in Ward No. 18, it is 4900; whereas in Ward No. 39, it is 1800, and in Ward No. 40, it is 2292. Thus, no regard has been held to the number of voters while demarcating the wards. The total number of voters entered in the electoral roll is 1,20,406 and the average voters in each of the 40 wards come out to be 3010, whereas the total number of voters in the wards ranges from 1226 to 4900 and the difference varies from 10% to 60% and thus, the principle of representation of equal number of voters by each of the candidates elected has been flouted and that the same is violative of Section 13(2) of the Municipalities Act and the allegation is that the same has been done intentionally to give benefit to the candidates of particular political party. It has been alleged that the number of wards has been changed to accommodate certain persons and number of half of the wards have been changed. The grievance in the matter of inclusion of certain names in the electoral rolls has also been raised. Shri Khan has replied that the number of voters in certain wards have increased after the issue of the draft notification on the basis of the objections received because the boundaries of the wards which had been fixed could not be altered and if certain persons whose names were not included in the electoral rolls filed objections and on that account their names had to be included and the same has resulted into increase of total number of voters in certain wards and, thus, the difference in the total number of voters in certain wards has exceeded the limit of 10% plus minus, but the same was inevitable. At this juncture, the petitioner, Dharamveer who himself is a practising advocate at Alwar, pointed out that the submission that the number of voters which have been included on the basis of their objections after the issue of the draft notification are very few in number. Shri Khan could not place any material to controvert this position. Regarding other allegations, his reply is that the principle of continuity has been maintained.
9. S. B. Civil Writ Petition No. 3432/1990; Chandra Kant v. State of Rajasthan: Bharatpur.
20. The petitioner's case is that the reservation of six wards for scheduled caste, two for scheduled caste women and 10 for women (general) is against the provisions of Section 9(2). Ward No. 34 has been divided into two wards as Nos. 31 and 32 and the formation of the ward is not cohesive and no method of division of wards has been adopted. The grievance has been raised regarding Wards Nos. 22,5,8 etc. Objections were filed, but the same have not been considered. The final notification was issued on 7th June, 1990. Ward No. 28 which was earlier shown as general ward has been renumbered as Ward No. 27. The petitioner has given several illustrative instances and it has been submitted that the procedure in allotting numbers to various wards has been wholly arbitrary, unreasonable and due regard has not been shown to the principle of uniformity and the formation of wards is wholly defective. The grievance has also been raised with regard to the entries in the voters' list etc. Shri Khan, though contested these allegations has not' produced any material to indicate that the wards had been numbered keeping in view the strength of the population and that principle of contiguity has been followed.
10. In S. B. Civil Writ Petitions Nos. 3445/ 1990, 3390/1990, 3449/1990, and 3441/1990, the allegations with regard to change of number of wards in an arbitrary manner and violation of principle of contiguity and departure from the principle of reserving every third ward for women candidates etc. and other allegations of general nature have been made and the same were sought to be explained by Shri Khan on the principle of contiguity and the reservation of certain wards made in favour of SC/ST candidates.
21, The following contentions have been raised in these cases :-
1. According to the amendment in Section 5, there cannot be any municipal council for a town having population of more than 5 lacs and in such cases there is no question of holding election for municipal council and they must be held for the municipal corporation rather than for municipal council.
2. That the ward numbers have been allotted and altered, reserved and dereserved in a wholly arbitrary manner for collateral purposes and for the purpose neither authorised nor permissible under law.
3. Rule 3 of the Rajasthan Municipalities fixation of seats (for women belonging to SC/ ST and determining of wards for women by rotation) Rules, 1990 has been violated and the wards having numbers which are not multiple of three or divisible by three for reservation for women and certain wards which are divisible by three or are numbered as multiple of three have not been reserved for women.
4. In the matter of reserving the wards for SC/ST no care has been taken to the percentage of SC/ ST voters and the wards which ought to have been reserved for SC/ST have been kept as general wards and those which ought to have been kept as general wards have been reserved for SC/ST.
5. While forming wards, due regard has not been given to the total number of voters and the total number of wards and in doing so, the principle of 10% plus minus voters in the wards has been violated.
6. The wards have been formed in violation of Section 14 and the objections filed were not considered.
22. Regarding the first contention which has been raised for Jaipur and Kota, it may be straightway observed that as per the amendment in Section 5, it is clear that for an area having a population of more than 5 lacs there should be a municipal corporation. The contention raised by Shri Bajrang Lal Sharma, who appeared in support of the writ petitions in relation to Jaipur, is that after the amendment in Section 5, no municipal council can be conceived for an area having a population of more than five lacs. So far as Jaipur is concerned, it was an admitted position that the population of Jaipur even as per the census of 1981 was more than 5 lacs and hence under the Act, the Municipal body for Jaipur cannot be classified as Municipal Council; there must be a Municipal Corporation and the respondent cannot be allowed to continue with the Municipal Council; the municipal area of Jaipur has to be comprised under a Municipal Corporation. Once the law has provided and the Legislature has given its mandate that areas having a population of more than 5 lacs shall be classified as Municipal Corporation, and Executive cannot be allowed to flout the mandate of the Legislature. This contention in my opinion carries conviction and force and the same deserves to be accepted. The people of municipal area with more than 5 lacs population, cannot be deprived of the amenities and the facilities which are available under a Municipal Corporation if by law such area deserves to be an area to be governed by a Municipal Corporation. The maxim is that "Law lags behind", but here is a case in which law provides for a municipal corporation and has the manifestation of the concept of advancement but the executive seems to lag behind despite the Legislative mandate of providing amenities and facilities of municipal corporation of the people living in a municipal area having a population of more than 5 lacs and it is the Executive which seeks to deny the facilities and amenities in an in direct manner by continuing with the municipal council instead of municipal corporation. It is the settled principle of law that when the law clearly provides, the particular thing to be done in a particular manner, that has to be done in that very manner and cannot be permitted to be done in any manner other than that which has been prescribed under the law. This principle which was laid down in the case of Taylor v. Taylor, (1876) 1 Ch D 426 was followed and reiterated by the Supreme Court in the case of State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 : 1964(1) Cri LJ 263(2) and the relevant observations from para 8 are as under at page 266; 1964(1) Cri LJ :
"The rule adopted in Taylor v. Taylor, (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."
Accordingly, when the law has provided for municipal corporation, it is not permissible to go on with the Municipal Council and the Legislative mandate cannot be allowed to be flouted in a direct or indirect manner. Shri Virendra Bandhu has vehemently submitted that it was with reference to this very amended Section 5 that a statement was made before this Court on 29th November, 1987, in a writ petition which was filed with the prayer that the State Government may be directed to undertake census for the Municipal area and of all the wards separately preparatory to fresh limitation of municipal wards, that there shall be a municipal corporation for an area having a population of more than five lacs. The exact words in which the statement was made are quoted as under:
"Learned counsel for the respondent has brought to my notice the Rajasthan Municipalities (Amendment Ordinance, 1989) (Ordinance No. 9 of 1989) published in the Rajasthan Gazette, dated 12-10-89, amending Section 5 of the Rajasthan Municipalities Act (Act No. 38 of 1939) provides that there shall be a Municipal Corporation for an area having a population of more than 5 lacs and therefore, there will be no elections for the Municipal Council and now as and when the elections will be held, they will be held for Jaipur Municipal Corporation. Obviously, there will be a fresh delimitation of wards and the procedure prescribed under the Act and the Rules will be allowed. Therefore, no directions need be issued at this stage. It is expected that the Government will expedite fresh delimitation and the procedure prescribed, and hold elections at the earliest."
23. The submission of Shri Bandhu was that having made this statement before the Court, the Government cannot be allowed to give up the same and it has to respect the statement which was made before the Court on the basis of which the order dated 29th November, 1989 was obtained. The submission of Shri Khan that it could not be done for want of corresponding amendment in the Municipal Act is only a poor apology to disown the above statement made before the Court, and the same cannot be accepted. In my opinion, the writ petition in which the order dated 29th November, 1989 was passed was essentially a litigation to undertake the proceedings for the Municipal areas and the order dated 29th November, 1989 was passed after the amendment in Section 5 i.e. after 12th October, 1989. Obviously, the purpose was to ascertain that the municipal areas having population of more than 5 lacs and this writ petition was particularly in relation to Jaipur so that Jaipur Municipal Corporation can be formed, and the Government itself was alive to this amendment while making the above statement. Such a commitment given before a bench of this Court was a commitment not only to the Court but a commitment to the society and the people of those municipal areas where the population exceeds five lacs. I do not find any reason for non-fulfilment of such a commitment made before the Court and the executive cannot be allowed to take a retreat from a state where it had already been led to by the Legislature. The State Legislature is a representative body of the people and its members who know the pulse and nerves of masses enact the law to attain the objects which the people cherish the most. It is the pious duty and obligation of the executive to implement such enactments with promptitude and the executive cannot be allowed to be indifferent and it can only illafford to let such enactments to be the decorative provisions only in the statute books. To have Municipal Corporation for Jaipur became all the more imperative when it is admitted that the population of Jaipur had exceeded the figure of five lacs even on the basis of census of 1981 and now it was going to touch or cross even the figure of 10 lacs.
24. Shri K. K. Mehrish submitted with reference to Kota that although the population of Kota on the basis of census of 1981 was less than 5 lacs, but it has already exceeded the figure of 5,00,000. It is for the respondents to find out as to what is the actual population of Kota, But in case, the same has exceeded the figure of five lacs, the people of Kota are also entitled to have a municipal corporation instead of Municipal Council. I, therefore, hold that any municipal area in Rajasthan where population exceeds 5 lacs must have a Municipal Corporation and for such areas, the election should be held for municipal corporation rather than for municipal council.
25. Regarding the second contention that the ward numbers in the various municipal boards/councils have been allotted and altered, reserved and dereserved in an arbitrary manner, it may be observed at the very outset that this time the allotment of numbers to wards was not merely a matter of arithmatic numbering and question of no consequence. It had assumed a great importance and it had become a matter of concern and a matter of farreaching consequences because of the provisions of Rule 3 of the Municipalities Fixation of Wards (for Women belonging to SC/ST and Determining of Wards for Women by Rotation) Rules, 1990. Once it has been provided by rule that every third ward will be reserved for women in a municipal board/ council, the numbering of wards had become directly related to the question of reservation and therefore, the right of a contestant to represent the ward had become dependant upon the number allotted to such ward. The ward which was to be numbered as a ward divisible by three was to be a ward reserved for women and, therefore, no male can be a candidate from any of wards. In view of this amendment, it had become the statutory duty of the election department to first ascertain the wards in which the percentage of women was more and the numbering should have been done by allotting numbers as multiple of three to such wards and only thereafter the further exercise was to be done. It has become transparently clear in the facts of the present cases that this procedure was not followed and without following this procedure, the arithmatic numbers were allotted to the wards and, thus, even those wards were reserved for women in which the percentage of women was less. It is implicit in the very nature of the language employed in Rule 3 that only those wards were to be numbered as the wards having numbers multiple of three where the percentage of women was more and it has become quite clear on the basis of the data produced in these cases that this principle was not followed and the wards were numbered, allotted and re-allotted, reserved and de-reserved in a wholly arbitrary manner without giving due regard to the considerations which were germane and the same has given rise to a serious and legitimate grievance. It is the basic tenet of our constitution that every citizen is protected against the arbitrary exercise of power and the arbitrariness is antithesis to the reason. In order to meet the contention of the allotment, numbering and re-numbering of wards in an arbitrary manner and the arbitrariness in the matter of reserving and dereserving of wards. Mr. M. I. Khan appearing on behalf of the respondents has argued that the Election Department has followed the principle of contiguity and he also produced before me the maps of certain municipal areas and tried to show that numbers had been allotted to the wards on the principle of continguity. More I looked into the maps more I was convinced that in most of the cases, the principle of contiguity was the first casualty. The ward numbers had been allotted in a most haphazard manner not showing any uniformity whatsoever, and obviously this resulted in making the rights of those persons defeasible who had nourished a particular ward in a municipal area with their service, who had become popular to the people in a particular ward and were naturally expectants of being elected from such wards. To put it more precisely, the rights of such persons could not be made to be defeasible by numbering their wards as a ward multiple of three and thereby reserving the same notwithstanding the percentage of voters of the category for which it was reserved. In this regard, the instances which have been pointed out by the petitioners in various cases, where this principle has been flouted, are only illustrative and not exhaustive. The learned counsel for the petitioners have placed heavy reliance on a common judgment of a coordinate bench of this Court, whereby three writ petitions Nos. 2474/90, 2496/90 and 2507/90 i.e. Viidya Banwari Lal and Ors. were allowed on 8th August, 1990, on the ground of arbitrary allotment and change of numbers and reservation and dereservation of wards without any rational basis. The operative part of this judgment is reproduced as under:--
"13. In the result, it is held that the final delimitation of wards done by the respondent No. 1 in Petition No. 2496/90 by order dated June 2, 1990 (Anx. 6) and in Petition No. 2474/90 vide final notification dated June 3, 1990 (Anx, 3) & in Petition No. 2507/90 vide final notification dated June 1, 1990 (Anx. 2), being arbitrary, illegal, discriminatory and against the provisions of the Act, 1959 & the Rules, 1990, are quashed. It is, therefore, directed that no election shall be held as per the delimitation made in the abovementioned three final notifications, which have been quashed. It is further directed that the delimitation of the wards should be made at the earliest in accordance with the provisions of the Act, 1959 and the Rules, 1990".
26. I am in full agreement with the reasoning and the conclusion in the above order. Therefore, I have no hesitation in holding that the Election Department has miserably failed in first undertaking the elementary exercise to identify the wards with greater percentage of women, SC/ST voters for the purpose of reservation and has allotted the numbers of various wards without undertaking such an exercise and the changes which have been made and the numbers which had been allotted and reallotted even after the issue of draft publication were done in a wholly irrational manner and in total disregard of the basics which should have been followed in the very beginning. Thus, I find that in these circumstances, the whole bedrock to call upon the electorate for election was shaky and in view of serious lapses and lacunae and inherent defects, electorates cannot be called upon to exercise their valuable right, when the very foundation for holding the election was shaky.
27. The third contention is that according to Rule 3 every third ward should be reserved for women subject to maximum of 30% including the seats reserved for women belonging to SC/ST. Therefore, in any Municipal area every third ward should be a ward reserved for women. For example, if there are 30 wards in all, at the most 9 wards out of 30 could be reserved for women. Now, the question arises as to which 9 wards out of 30 should be reserved for women. For this purpose, the Election Department has to first identify those 9 wards in which the percentage of women voters is more and then number those 9 wards as the wards multiple of 3 and the remaining wards have to be numbered thereafter. If that is done, no grievance can be raised with regard to the allotment of the number nor the grievance can be raised with regard to the reservation of such wards for women. In the instant case, 1 find that the wards with greater percentage of women -voters were not identified and without such identification, the wards were allotted the numbers and even after the allotment of such numbers without following the basic criteria in certain cases, the ward numbers which were neither divisible by 3 nor multiple of 3 were reserved for women and the wards which divisible or multiple of three were not reserved for women as is clearly illustrated by the reservation of Ward No. 32 for women in the case of Tonk, where out of 35 wards, in all, in draft proposal, Ward No. 33 was reserved for women, but in the final publication ward No. 32 was reserved for women instead of Ward No. 33, which was the number divisible by 3. Thus, Ward No. 33 was dereserved in violation of Rule 3. In this regard, Shri M.I. Khan has given a very curious explanation and the same is that in view of the proviso under Rule 3 of the Rajasthan Municipalities (Fixation of Seats for Women Belonging to SC/ST and Determining of Wards for Women by Rotation) Rules, 1990, the allotment of wards for women belonging to SC/ ST, has to be determined only out of the seats reserved under Sub-section (3) of Section 9 and, therefore, those wards which had already been reserved for SC/ ST under Sub-section (3) of Section 9 were no more available for reservation for women. One fails to understand as to how the number of seats reserved for SC/ST under Sub-section (3) of Section 9 is relevant to consider and appreciate this contention. Sub-section (3) of Section 9 deals with the total number of seats fixed by the State Government to be reserved for SC/ ST, but the total number of such seats has nothing to do with the allotment of number. The idea is that while reserving a ward for SC/ST women care has to be taken that the total number of wards to be reserved for SC/ST does not exceed the number of seats reserved under Sub-section (3) of Section 9. But it has nothing to do with the allotment of arithmatic numbers. In this view of the matter, the only care and caution while operating Rule 3 is that even if the ward is reserved for SC/ ST women along with women in general, the total number of seats reserved for SC/ST should not exceed the strength of the seats fixed under Sub-section (3) of Section 9 and, hence, the proviso under Rule 3 having reference to Sub-section (3) of Section 9 has no relevance beyond what has been indicated above. In the matter of allotting the arithmatic number to the wards, as a matter of fact, after identifying the total number of wards to be reserved for women, such wards have to be first numbered as the wards which are multiple of three and out of these wards if any ward is reserved for women SC/ ST such number of wards will be deducted from the total number of wards fixed for SC/ST under Sub-section (3) of Section 9 and only ihc remained number of wards have to be reserved for SC/ST. Thus, the statement of Shri Khan is not tenable and the same is rejected. I further hold that Rule 3 has not been operated on a correct premises and Rule has been violated in certain cases as already indicated above.
28. While dealing with the fourth contention, it may be observed at the very out-set that first of all, the Department has to notice the total number fixed for such reservation under Section 9 and thereafter it has to ascertain and identify those wards where the percentage of SC/ST voters is more. Such wards are then required to be reserved for SC/ ST on the basis of percentage of voters of SC/ST therein. This principle has not been followed as is clearly illustrated by the grievance raised in several cases, including the grievances raised with regard to dereservation of Ward No. 1 in Tonk, dereservation of Wards Nos. 22 and 23 and reservation of Ward No. 19 and the reservation of Ward No. 38 for ST in Jaipur, change of Anandpuri in Ward No. 27 to that of Ward No. 26, and then reserving the same for scheduled tribe, although there were hardly 100 voters belonging to ST in this area pertaining to Municipal Council, Kota. Thus, 1 find that due regard has not been given to the strength of total number of voters of SC/ ST, while reserving the wards for them and the wards have been reserved and dereserved in an arbitrary manner and no definite criteria has been followed and applied.
29. Regarding the fifth contention, in my opinion, the correct procedure which is required to be followed is to first notice the total figure in a municipal area under a board or council or corporation and then to divide this figure by total number of wards in which the area in sought to be demarcated. The resultant number should be the number in each ward subject to varition of 10% plus minus. Supposing there is a municipal area having 1,00,000 as the total figure and 25 wards, then 1,00,000 divided by 25 comes out to be 4000 and, therefore, each ward should have the figure of 4000 subject to a variation of 10% plus minus i.e. it can be 3600 to 4400, of course, with due regard to maintaining the compactness of the area. This basis was noticed by this Court in the decision in the case of Bhagirath v. State of Rajasthan 1983 RLR 805 : (1983, Raj LW 708) para thereof with reference to the instructions issued by the Election Department of the Government of Rajasthan vide letter No. F. 2(2)(1)M/Ele/-3509/82 dated September 1982. Para 9 of this judgment is appropriately quoted as under:
"I have given the considered thought about the submissions made by the learned counsel for the parties in the matter of the division of municipal council into wards. The Legislature in its wisdom has rightly used the wards as far as possible in Section 13(2) of the Act. The population of the ward can be one of the main foundation for the division of the Municipal Board/Council into wards. But at the same time, the compactness of the area will have to be taken into consideration. The Legislature also wanted that the area should be compact as well as the representation of each ward should be on the basis of the population of that ward and every ward should bear as far as possible the same proportion as the total number of seats for the municipality bear to its population."
30. Here, 1 find that there is a minor breach of this principle in few cases, but in certain cases there is grave and shocking breach of this principle; for example in the case relating to Alwar, the data (with reference to total number of voters, of course, not with reference to population) are as under:--
1. Total number of voters 1,20,406 2. Total No. of wards 40 Average comes to be 3010 Number of voters in certain wards are as under:-
Ward No. Voters 12 1226 38 2585 23 2978 22 3203 21 3578 35 3698 1 3942 24 4494 18 4900 39 1800 40 2292
31. The grievance has been raised with regard to Chhabra (Kota), wherein the complaint about difference is to the tune of 100%. When Shri Khan was confronted with this position and data the only reply which he was able to give was that once the area had been demarcated for respective wards, the Department could not have altered the area and if certain voters came with the grievance that their names had not been included in the electoral roll and got their names included later on resulting into the increase in the number of voters in particular wards, the department could not help this situation. This reply was contested on behalf of the petitioners by submitting that the increase in the number of voters on aforesaid ground was very little, rather negligible and it is wrong to say that the number of voters in certain wards have increased because of the aforesaid grounds to such an exten and it was submitted that from the very beginning there was significant difference in the number of voters and I find that the grievance raised is a legitimate grievance and the same deserves to be redressed.
32. The sixth contention raised on behalf of the petitioners is certain cases viz. in the cases of Tonk, Alwar Pilani (District Jhunjhunu), Chhabra (Kota), Narayana etc. is that the objections had been filed by them against the draft notification, but the same were not considered and without considering the objections, the final notification was issued. Of course, no order -- speaking or otherwise --is required to be passed after considering the objections, but it appears that there was no active application of mind by the Department to these objections while issuing the final notification. Had the objections been considered with due and active application of mind with an objective approach, many of the grievances which have been raised before this Court could be avoided,
33. Mr. Khan, Addl. Advocate General opposing the various cotnentions raised by a battery of lawyers appearing on behalf of the petitioners invited my attention to Mohinder Singh Gill's case, reported in AIR 1978 SC 851 and submitted that in view of the law laid down by the Supreme Court in this judgment, no writ petition can be maintained, in the election matters. There is no quarrel that the writ petitioners cannot be maintained in election matters, but in the cases at hand, we are concerned with the grievances raised with regard to pre-election matters before the issue of the notification calling upon the electorates to return the candidates. Besides this distinction, Mohindra Singh Gill's case was a case dealing with the Representation of Peoples Act and the whole case centres round the bar under Article 329 of the Constitution which speaks to push out the remedy under Article 226 of the Constitution, It is made clear that the matters relating to election and the matters which are pre-election matters stand on a different footing and so far as the pre-election matters are concerned, the objection regarding maintainability of the writ petition does not apply with the same force. In this context, reference may be made to the Full Bench decision of this Court in Atma Singh's case, reported in 1967 RLW 275 : (AIR 1967 Raj 239). It was also a case relating to election under the Rajasthan Municiplities Act, 1959 and, in this case, the Full Bench dealth with the questions which had been referred by a Division Bench. In para 14, in the case of Atma Singh, it was observed as under:--
"It will neither be reasonable nor proper to hold that non-compliance of the provisions of the Act relating to pre-election matters can form the subject matter of investigation in an election petition. Such matters can hardly be an appropriate subject for investigation by an election tribunal. As a matter of fact, Section 33 of the Act has barred the jurisdiction of the Election Tribunal to review the acts of the concerned authority relating to pre-election matters as provided therein."
It has been further observed in para 16 as under at page 246 Raj; AIR 1967 :
"16. The process of election starts by issuing of a notification calling upon a constituency to elect a member. Before such a notification can be issued, a number of preliminary steps have to be taken under the law. We have noticed that the Act makes provisions for taking such steps. Broadly speaking these provisions relate to :--
(1) Constituting a municipality and defining its limits.
(2) Issuing notification by the State Government declaring the composition of the Board.
(3) Division of Municipality into various wards and defining the limits, (4) Preparation of electoral roll.
The law has laid down the manner in which these feelings are to be done. There may arise cases in which the authorities have failed to perform their functions in accordance with law in doing these things. Sometimes the transgression of law may be inexcusable and of such a serious nature that a court may be persuaded to take the view that the bedrock to hold elections is massing. In such circumstances, a citizen may apply to this Court under Article 226 of the Constitution for issuing of mandamus or any other appropriate writ directing the State Government to perform these things in accordance with law and the High Court in an appropriate case may, in its discretion, issue such a writ or direction restrainting the Government to hold election. Suppose nobody comes forward at that stage and the elections are held. Even then, a citizen may file a petition under Article 226 of the Constitution not only for a declaration that the State Government has not acted in accordance with law in the doing of the aforesaid things and that what has been done is null and void but also for a further declaration that the elections that had taken place be also held null and void. The High Court may take into account the circumstances that the petitioner could have come earlier before the election for relief in this Court under Article 226 of the Constitutions and he has failed to do so, but it may find that the infirmity in taking these proper steps is of such consequence that no election could have taken place and it may in its discretion then quash the preliminary steps taken in these pre-election matters and may as a consequence also set aside the election. The attack of the petitioner is not to the manner in which elections have been conducted, but to the infirmity to these pre-election matters. Under such circumstances what the Court could do before the election, it can also do after the elections. We may no doubt point out that the court would refuse to grant relief unless it comes to the conclusion that the very foundation for holding the election was lacking. Setting aside an election is a serious matter and every breach of a provision should not be permitted to be an excuse for a prayer for setting aside an election."
34. The outcome of the aforesaid discussion and the adjudication of various points raised in these cases is that the functionaries of the Government have failed to discharge the obligation in accordancew with the law with regard to the question of having Municipal Corporation instead of Municipal Council for Municipal areas having a population of more than 5 lacs, with regard to the formation and demarcation of wards, in the matters of identifying the wards with reference to the strengrth of voters for whom the wards were to be reserved and they have acted jn a wholly arbitrary manner in the matter of allotment and numbering/renumbering of wards and, therefore, while allowing these writ petitions I deem it lawful and proper to direct as under:
(1) The authorities concerned would first of all find out those municipal areas where the population has exceeded 5 lacs and would create municipal corporation instead of municipal councils for Jaipur and such other municipal areas in Rajasthan in accordance with Section 5 of the Act and take necessary steps and appropriate measures in accordance with law before calling upon the electorates of such areas for election to the Municipal Corporations rather than Municipal Councils.
2. The wards shall be formed in each municipal area keeping in view the provisions of Section 13 of the Act with the caution of compactness of the area and the principle of 10% plus minus.
3. The authorities may then identify the wards to be reserved for women (including SC/ST women) and for SC/ST on the basis of percentage of the voters of the categories for which the ward is to be reserved.
4. The wards which are identified to be reserved for women (including SC/ST women) shall be numbered as 3 and the multiple of 3. For such number of seats which are fixed to be reserved for SC/ST under Section 9 number shall be allotted and these numbers would also include the number of wards which are reserved for SC/ ST women.
5. While allotting the number the principle of contiguty will be followed and the efforts shall be made to complete the circle from first ward to the last ward.
6. The objections, if any, which are filed after the publication of the draft notification shall be duly considered before finalising the the same.
7. The electorate shall be called upon for election for Corporation/'Council/Boards after the preparatory measures are completed in accordance with law, after complying with the directions as aforesaid.
8. These directions shall be carried out within three months from the date of this judgment and notification calling upon the electorate for election shall be issued immediately thereafter latest by 31st December, 1990.
The writ petitions are allowed as indicated above. There shall be no order as to costs.