Full Judgment Text
$~20 & 29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.02.2022
+ W.P.(C) 1892/2022 & CM APPLs. 5458-59/2022
PANKAJ SHARMA ..... Petitioner
Through: Mr. Navin Kumar Jha & Mr. Manish
Bhardwaj, Advs.
versus
STATE ELECTION COMMISSION ..... Respondent
Through: Mr. Sumeet Pushkarna, Mr. Devanshu
Lahiry, Advs. with Mr. Sandeep
Mishra (Secretary) & Mr. P.K. Goel
(Dy. Secy.)
+ W.P.(C) 2027/2022 & CM APPLs. 5791-92/2022
MANOJ KUMAR JHA ..... Petitioner
Through: Mr. Arun Maitri, Adv.
versus
STATE ELECTION COMMISSION & ORS. ..... Respondents
Through: Mr. Sumeet Pushkarna, Mr. Devanshu
Lahiry, Advs. with Mr. Sandeep
Mishra (Secy.) & Mr. P.K. Goel (Dy.
Secretary) for R-1.
Mr. Sameer Vashisht, ASC (Civil),
GNCTD with Ms. Sanjana Nangia,
Adv. for R-3/GNCTD.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 1 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
J U D G M E N T
: VIPIN SANGHI, J (ORAL)
1. These two writ petitions have been preferred to assail, and seek the
setting aside of the reservation order bearing No.
F.4(101)/SEC/LAW/2022/3309 dated 25.01.2022 issued by the State
Election Commission, NCT of Delhi & U.T. Chandigarh.
2. At the outset, we may observe that Mr. Pushkarna, who appears for
the respondent-State Election Commission (hereinafter referred to as
“SEC”) , informs us, on instructions, that the impugned order dated
25.01.2022 has been duly gazetted in the Gazette of Delhi.
3. The challenge to the reservation order dated 25.01.2022 in these
petitions is, firstly, premised on the assumed lack of competence in the SEC
to issue the said order dealing with the aspect of reservation of the
seats/wards for the Scheduled Caste candidates and for women candidates in
the wards/seats of the three Municipal Corporations of Delhi. The second
challenge is to the rotation of the reserved seats for the Scheduled Caste and
women category candidates.
4. So far as it is relevant, the impugned reservation order reads as
follows:
“ To be published in Extra Ordinary Gazette of Delhi Govt ( Part IV)
STATE ELECTION COMMISSION,
NCT OF DELHI & U.T. CHANDIGARH,
NIGAM BHAWAN, KASHMERE GATE, DELHI.
No. F.4(101)/SEC/LAW/2022/3309 Dated: - 25.01.2022
ORDER
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 2 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
WHEREAS the Delhi Municipal Corporation Act, 1957 was
amended by the “The Delhi Municipal Corporation (Amendment)
Act, 2011” vide Government of Delhi (Department of Law, Justice
and Legislative Affairs’ Notification No.
th
F.14(12)LA/2011/Law/260 dated the 29 December, 2011;
AND WHEREAS the Central Government, Ministry of Home
Affairs, New Delhi, had delegated their powers under the fourth
proviso to sub-sections (6), (7) and (8) of section 3 of the Delhi
Municipal Corporation Act, 1957 vide Notification No.
th
U.14011/187/93-Delhi dated 14 December, 1993 and the powers
under the provisions of clauses (c), (d) and (e) of sub-section (2) of
section 5 of the aforesaid Act were delegate to the Election
Commission of the National Territory of Delhi vide Notification
nd
No. U. 14011/187/93-Delhi dated the 2 March, 1994. Further
consequent to the amendment of the said Act, the Government of
the National Capital Territory of Delhi delegated their powers
under provisions of sub-section (5), (7) and (8) of section 3 and
clauses (c), (d) and (e) of sub-section (2) of section 5 of the
aforesaid Act to the Election Commission of the National Capital
Territory of Delhi vide their notification No.
th
F.13(20)/UD/MB/2012/1103 dated the 24 January, 2012;
AND WHEREAS as per amended aforesaid Act, now there
are three Municipal Corporations in the National Capital
Territory of Delhi viz. North Delhi Municipal Corporation, South
Delhi Municipal Corporation and East Delhi Municipal
Corporation;
AND WHEREAS in the three Municipal Corporations of
Delhi, there a total of 272 wards – 104 wards in North Delhi
Municipal Corporation, 104 wards in South Delhi Municipal
Corporation and 64 wards in East Delhi Municipal Corporation as
per Delimitation Order No. F.7(55)/DLB/2015/Pt.1/2012, 203 and
th
204 respectively all dated 13 January, 2017;
AND WHEREAS as per provisions of sub-section (6) of
section 3 of the said Act, the number of seats to be reserved for the
members of Scheduled Castes shall as nearly as may be, bear the
same ratio to the total number of seats as the population of
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 3 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
Scheduled Castes bears to the total population of the respective
Corporation as per Census 2011;
AND WHEREAS the population (census 2011), Scheduled
Castes population percentage of Scheduled Castes (S.Cs)
population, total number of seats in the three Corporations,
number of seats to be reserved for the Scheduled Castes (S.Cs) as
per percentage of Scheduled Castes (S.Cs) population are given
below:-
Name
Population SC
Population
Percentage No. of seats SC
Seats
of
M.C
North
6254758 1212172 19.38% 104 20
Delhi
South
Delhi
6214059 879053 14.15% 104 15
East
Delhi
3949846 654998 16.58% 64 11
AND WHEREAS sub-section (7) of section 3 of the said
Act provides that seats shall be reserved for women belonging to
Scheduled Castes, from among the seats reserved for the
Scheduled Castes, and the number of such seats being determined
by the Election Commission which shall not be less than one half
of the total number of seats reserve for the Scheduled Castes. As
such, the number of seats to be reserved for Scheduled Castes
Women would be 10 in North Delhi Municipal Corporation, 8 in
South Delhi Municipal Corporation and 6 in East Delhi Municipal
Corporation being not less than one-half of the total number of
reserved seats for Scheduled Castes in the above-mentioned
Corporations.
AND WHEREAS sub-section (8) of section 3 of the said Act
provides that number of seats reserved for women shall not be less
than one half of the total number of seats other than those reserved
for the Scheduled Castes. Now, the number of seats reserved for
women shall be 42 in North Delhi Municipal Corporation out of
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 4 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
84, 89 and 53 seats respectively after deduction of seats reserved
for members of the Scheduled Castes, in the respective
Corporations.
On last occasion in 2017, the Election Commission had
decided vide Notification No. F.4 (11)/OSD.I/EGAL/sec/2017/5838
th
DATED THE 6 February, 2017, that wards of a Corporation of
Delhi should be reserved on the basis of highest percentage of
population of Scheduled Castes in a ward in descending order of
percentage of SC population to the quantum shown in the table
given in preceding para.
AND WHEREAS as per provision of clause (e) of sub-
section (2) of section 5 of the Delhi Municipal Corporation Act,
1957 as amended, the existing reservation of seats for above said
categories of persons have to be rotated to reserve new wards as
far as practicable;
NOW, THEREFORE, in exercise of the powers as delegated
by the Central Government and the Government of National
Capital Territory of Delhi as delegated to the Election Commission
of the National Capital Territory of Delhi, as detailed in the
preceding paras and all other enabling provisions, I, S. K.
Srivastava, State Election Commissioner, do hereby de-reserve the
existing wards of three Municipal Corporations of Delhi and
reserve new wards on rotation of wards for reservation for
specified categories of persons, for the next general elections to be
held in April, 2022 as under:-
(a) For the purpose of rotation of reservation of wards for the
above-mentioned categories, the wards with highest percentage
of Scheduled Castes, in descending order, in each Corporation
next to the last ward reserved for that category in 2017 have
been taken to the prescribed number in further descending
order of percentage of population for the members of the
Scheduled Castes as required to be reserved in pursuance of
the provisions of sub-section (6) of section 3 of the said Act.
Out of these reserved seats for members of the Scheduled
Castes, the seats to be reserved for women belonging to
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 5 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
Scheduled Castes, which number should not be less than 50%
of the total seats reserved for SC category, as prescribed under
the provisions of sub-section (7) of section 3 of the aforesaid
Act. Thus, out of the sequential order of serial numbers of the
wards in each Corporation, reserved for the members of
st r th
scheduled castes, 1 , 3 , 5 and so on wards numbers have
nd th th
been reserved for Scheduled Castes Women and 2 , 4 , 6 , and
so on reserved for Scheduled Castes as per details given
hereafter and in Annexures A, B & C and Annexures A-1, B-1
and C-1.
(b) For reservation of wards for women and general categories, as
per provision of sub-section (8) of section 3 read with clause (e)
of section 5 of the Delhi Municipal Corporation Act, 1957 as
amended, lists of remaining wards (after deduction of wards
reserved for Scheduled Castes and Scheduled Castes Women)
in sequence of serial numbers of wards in each Corporation
have been taken into consideration and are reserved for those
specified categories by rotation. Details are given hereafter
and in Annexure A, B and C and Annexure A-1, B-1 and C-1
respectively for each of the three Municipal Corporations viz.
North Delhi, South Delhi and East Delhi….”
5. The submission of learned counsel Mr. Jha, who appears for the
petitioner in W.P. (C) 1892/2022, is that the delegation of power–either by
the Central Government, or by the State Government upon the SEC, referred
to in the impugned reservation order is illegal inasmuch, as, according to
him, the legislative powers in relation to, inter alia, “ the constitution and
powers of municipal corporations ”, is with the State Legislature under Entry
5 of List-II of the 7th Schedule, and, therefore, in relation to the National
Capital Territory of Delhi, only the Legislative Assembly of the NCT of
Delhi is competent to issue an order for reservation for Scheduled Caste, or
for women candidates. Neither the Central Government, nor the GNCTD
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 6 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
are competent to issue such an order.
6. In so far as the challenge to the reservation of particular seats/wards
for Scheduled Caste and women candidates by rotation is concerned, the
challenge is laid on the premise that the last general Census was held in the
year 2011, and thereafter, the Census has not been held – on account of the
pandemic, which should have been held in the year 2021. Thus, without
having the latest Census figures with regard to the demographic distribution
of population i.e. the percentage of population of the Scheduled Castes in
every ward/seat within the Municipal Corporations, the respondent, in any
event, could not have resorted to rotation of the reserved seats/wards, as has
been sought to be done by the impugned reservation order.
7. Mr. Maitri, learned counsel for the petitioner in W.P. (C) 2027/2022,
has relied on Section 9 (1) (c) of the Delimitation Act, 2002 to submit that it
is for the Delimitation Commission, on the basis of the Census conducted, to
delimit the constituencies, and in that process, identify the constituencies in
which the seats are reserved for the Scheduled Castes in different parts of the
State.
8. On the other hand, Mr. Pushkarna, who appears on advance notice on
behalf of the SEC, has firstly argued that the issues raised in the present writ
petition are covered by the earlier judgement of this Court in “We The
Citizens Through Its Secretary vs. Union of India & Ors.” W.P. (C)
1291/2017, and several other connected writ petitions, decided on
23.03.2017. He submits that the argument premised on the aforesaid
provision of the Delimitation Act, in any event, is misplaced inasmuch, as,
the said Act has no application to municipal elections, with which we are
concerned. In this regard, he has referred to the Preamble of the
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 7 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
Delimitation Act, 2002, which reads follows:
“An Act to provide for the readjustment of the allocation of seats
in the House of the People to the States , the total number of seats
in the Legislative Assembly of each State , the division of each
State and each Union territory having a Legislative Assembly into
territorial constituencies for elections to the House of the People
and Legislative Assemblies of the States and Union territories
and for matters connected therewith.” (emphasis supplied)
9. Mr. Pushkarna, further, submits that so far as delimitation for the
purpose of municipal election is concerned, the same is specifically provided
for under Section 5 of the Delhi Municipal Corporation Act, 1957 (The Act
for short). He further submits that on the aspect of delegation of the powers
by the Central Government and the GNCTD to the SEC, and the competence
of the SEC to issue the impugned order, the ground has not been
substantially raised in the writ petition being W.P. (C) 1892/2022. The only
averment contained in the grounds of the writ petition is the following:
“(C) Because the Respondent Commission is not competent to
issue the impugned Order whereby the reserved seats in the
three Municipal Corporations are sought to be rotated. The
delegation of power under the impugned Order/Notification
dated 25.01.2022 is unconstitutional, as the State Election
Commission is an autonomous body under the provisions of
the Constitution. Further, in terms of the amended Delhi
Municipal Corporation Act 1957 the Government is
empowered to rotate the reserved seats. However, the
concerned provision of the Delhi Municipal Corporation Act
1957 does not manifest the difference between the
Government and the Assembly as the word “State
Legislature” is specifically provided in Article 243T of the
Constitution.”
10. We may now take note of Section 3 of the Act.
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 8 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
11. Section 3 (1) of the Act talks about the establishment of the three
Municipal Corporations by the Government, by notification in the Official
Gazette. The three Corporations are charged with the municipal
Government of Delhi. Section 3(3)(a) states that a Corporation shall be
composed of Councillors, and Section 3(4) states that Councillors shall be
chosen by direct election on the basis of adult suffrage from various wards
into which Delhi shall be divided in accordance with the provisions of the
Act. Section 3 (5), inter alia , provides that the total number of seats of
councillors, and the number of seats reserved for the members of the
Scheduled Castes in each Corporation shall, at the time of establishment of
such Corporations, be as determined by the Government, by notification in
the Official Gazette. Section 3 (6) to Section 3 (8) are relevant, and we
reproduce the said provisions hereunder:
“ 3. Establishment of the Corporation
(1)..........
(2)..........
(6) Upon the completion of each census after the establishment of
[a Corporation] the number of seats shall be on the basis of the
population of [the area of the Corporation] as ascertained at that
census and shall be determined by the Central Government by
notification in the Official Gazette and the number of seats to be
reserved for the members of the Scheduled Castes shall, as nearly
as may be, bear the same ratio to the total number of seats as the
population of Scheduled Castes bears to the total population of
Delhi:
Provided that the total number of seats in all the Corporations in
Delhi shall in no case be more than two hundred and seventy-two
and the number of seats in each Corporation shall be determined
by the Government at the time of establishment of such
Corporations:
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 9 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
Provided further that the determination of seats as aforesaid shall
not affect the then composition of [a Corporation] until the expiry
of the duration of [a Corporation]:
Provided also that for the first election to the Corporations to be
held immediately after the commencement of the Delhi Municipal
Corporation (Amendment) Act, 2011, the population figures of
every such Corporation as published in relation to 2001census
shall be deemed to be the population thereof as ascertained in that
census:
Provided also that the seats reserved for the Scheduled Castes
may be allotted by rotation to different wards in such manner as
the Central Government may, by order published in the Official
Gazette, direct.
(7) Seats shall be reserved for women belonging to the Scheduled
Castes, from among the seats reserved for the Scheduled Castes,
the number of such seats being determined by the [Government] by
order published in the Official Gazette which shall not be less than
[one-half] of the total number of seats reserved for the Scheduled
Castes.
(8) Seats shall be reserved for women, the number of such seats
being determined by order published in the Official Gazette by the
[Government] which shall not be less than the [one-half] of total
number of seats other than those reserved for the Scheduled
Castes:
Provided that such seats reserved for women shall be allotted by
rotation to different wards in such manner as the [Government]
may, by order published in the Official Gazette, direct in this
behalf." (emphasis supplied)
12. From the aforesaid provisions it would, firstly, be seen that the aspects
of reservations for the Scheduled Castes – i.e. the number of seats to be
reserved; and the particular seats to be reserved, falls within the domain of
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 10 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
the Central Government, whereas, the aspect of reservations for Women
(both – belonging to the Scheduled Castes, and the those not belonging to
the Scheduled Castes) fall within the domain of the Government i.e.
GNCTD. Secondly, it would be seen that in so far as the aspect of
determination of the number of seats to be reserved for the Scheduled Castes
is concerned, the determination of the said number is to depend upon the
latest Census report, which is available at the time when the elections are
due. It is on the basis of the percentage of the Scheduled Caste population–
as ascertained by the Census, that the Central Government, by the
notification in the Official Gazette would determine the number of seats to
be reserved for the members of the Scheduled Castes, such that, the number
of reserved seats shall bear the same ratio to the total number of seats, as the
population of Scheduled Castes bears to the total population of Delhi, as
nearly as may be.
13. Thus, the Census figures with regard to the percentage of Scheduled
Castes population–in the overall population, are relevant, for determination
of the number of seats to be reserved for the Scheduled Castes in the
Municipal Corporation.
14. In respect of the first election of the three Corporations, held
immediately after the trifurcation of the Delhi Municipal Corporations by
the Delhi Municipal Corporation (Amendment) Act, 2011, the third proviso
stipulated that the population figures of every such Corporation–as published
in relation to the 2001 Census, shall be deemed to be the population thereof,
as ascertained in that Census.
15. Having scrutinised the aforesaid provision, we also find that the
census figures with regard to the population of Delhi really have no role to
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 11 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
play when it comes to identification of the particular seats/wards which may
be reserved for the Scheduled Castes, or women. Once the number of seats/
wards reserved for the Scheduled Castes in each municipality is determined,
(on the basis of the census figures – which would also indicate the
percentage of Scheduled Castes within the area of the three Municipal
Corporations of Delhi), it is left to the competent Government to specify –
by an “Order”, as to which of the seats/wards in each municipality may be
reserved for the Scheduled Castes & women. The last proviso to Section 3
(6) is relevant, which provides “that the seats reserved for the Scheduled
Castes may be allotted by rotation to different wards in such manner as the
Central Government may, by order published in the Official Gazette,
direct” . (emphasis supplied)
16. Firstly, for the purpose of rotation of the reserved seats, the aforesaid
provision does not seek to place any reliance on the latest available census
figures – unlike for the purpose of determining the number of seats that may
be reserved for the Scheduled Castes. Secondly, the very fact that the seats/
wards reserved for Scheduled Castes, or women – as the case may be, may
be rotated, itself shows that such rotation is not necessarily dependent upon
the Scheduled Castes population in any given ward/seat. If only the seats
with the highest population of Scheduled Castes could be reserved for the
Scheduled Castes, the same would have been so provided in the opening
clause of Section 3 (6) itself, where the same talks of the number of seats to
be reserved for the Scheduled Castes being determined and notified by the
Central Government.
17. The root of Section 3 (6) to Section 3 (8) of the Act is found in Article
243T of the Constitution of India, which reads as follows:
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 12 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
“ 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.” (emphasis supplied)
18. A reading of Article 243T (1) shows that reservation for the
Scheduled Castes and the Scheduled Tribes in every Municipality is
constitutionally mandated. The extent of reservation is also mandated by
providing that the number of seats so reserved shall bear, as nearly as may
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 13 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
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.”
19. In so far as Delhi is concerned, since there are no notified Scheduled
Tribes, we are concerned with the seats reserved only for Scheduled Castes.
Article 243T (1) also shows that the flexibility of rotation is provided under
the Constitutional scheme. As already noticed above, the power to issue an
order, inter alia for the purpose of rotation of the seats reserved for the
Scheduled Castes in different wards, is vested by Section 3 (6) upon the
Central Government.
20. A perusal of the impugned order itself shows that it recites the source
of authority under which the SEC is purporting to act as the delegate of the
Central Government vis-a-vis exercise of the powers vested in the Central
Government by Section 3(6) of the Act. Pertinently, there is no challenge to
the said delegation, which was made vide the Notification No.
U.14011/187/93-Delhi dated 14.12.1993. With the amendment of the Act
by the Delhi Municipal Corporation Act, 2011, the power to issue an order
under Section 3(7) and 3(8) – which respectively deal with the aspect of
reservation of seats for the Scheduled Caste women, and women generally,
stood vested in the GNCTD. The GNCTD delegated its powers to issue
orders under Section 3(5), 3(7) and 3(8) vide Notification No.
th
F.13(20)/UD/MB/2012/1103 dated the 24 January, 2012.
21. We may now turn to Section 5 of the Delhi Municipal Corporation
Act, 1957, which deals with the aspect of delimitation of wards, and the said
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 14 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
Section reads as follows:
“ 5. Delimitation of wards
(1) For the purposes of election of councillors, [the area of a
Corporation] shall be divided into single-member wards in such
manner that the population of each of the wards shall, so far as
practicable, be the same throughout [the area of that corporation].
(2) The [Government] shall, by order in the Official Gazette,
determine,—
(a) the number of wards;
(b) the extent of each ward;
(c) the wards in which seats shall be reserved for the Scheduled
Castes;
(d) the wards in which seats shall be reserved for women; and
(e) the manner in which seats shall be rotated under sub-sections
(6) and (8) of section 3.” (emphasis supplied)
22. Section 5 (2) empowers the “Government” –which is defined in
Section 2 (21A) of the Delhi Municipal Corporation Act, 1957 to mean the
Government of the National Capital Territory of Delhi (GNCTD), to
determine, by an “order” published in the Official Gazette, inter alia , the
wards in which the seats shall be reserved for the Scheduled Castes, and
“the manner in which seats shall be rotated under sub-sections (6) and (8)
of section 3.”
23. Coming back to the impugned order, we find that the same recites the
delegation of power upon the SEC for exercise of power under provisions of
Clauses (c), (d) and (e) of sub-section (2) of Section 5 of the Act, vide the
nd
Notification No. U. 14011/187/93-Delhi dated 2 March, 1994. Further,
consequent to the amendment of the Delhi Municipal Corporation Act, the
GNCTD delegated their powers under sub-section (5), (7) and (8) of Section
3 and clauses (c), (d) and (e) of sub-section (2) of Section 5 upon the SEC
vide their Notification No. F.13(20)/UD/MB/2012/1103 dated the
Signature Not Verified
W.Ps.(C) 1892/2022 & 2027/2022 Page 15 of 29
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:08.02.2022
20:50:08
24.01.2012.
24. Once again, we may observe that there is no challenge in either of
these petitions to the said notifications of delegation of powers. Neither of
these notifications –by which powers have been delegated, either by the
Central Government, or by the GNCTD upon the SEC, have even been
placed on record.
25. In fact, in W.P. (C) 1982/2022, the SEC is the only party impleaded as
a respondent, and neither the Central Government, nor the GNCTD has been
arrayed as the party respondents. Thus, the argument sought to be advanced
by Mr. Jha with regard to the lack of competence – in either the Central
Government, or the GNCTD, to delegate their respective powers, either
under Section 3, or under Section 5 of the Act does not appear to carry any
weight or seriousness. We, therefore, reject the said submission.
26. In any event, once the Act, in terms, empowers the Central
Government–under Section 3(6), and the GNCTD–under Section 3(5),3(7),
3(8), and Section 5(2) to issue orders for the enumerated purposes, it is not
for the petitioner to contend that–either the Central Government, or the
GNCTD, does not have the statutory power and mandate to issue relevant
orders under the said provisions. There is no basis to claim that these
powers could not be exercised by, or delegated by the Central Government,
or the GNCTD, as the case may be. There is no challenge to either of these
statutory provisions in the present writ petitions on any ground whatsoever.
27. At this stage, we may take note of the submission of Mr. Jha that the
respondent, in any event, should not have undertaken the exercise of
rotation, since the respondent does not have the latest Census figures, as the
2021 Census is not conducted.
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28. The issue is not whether the respondent should, or should not, have
implemented the scheme of rotation, which is also envisaged under Article
243T of the Constitution of India, as well as Sections 3(6) and Section 3(8)
of the Act. The question is: Whether the respondent-SEC has the authority to
undertake the said exercise of rotation. Despite our repeated questioning as
to where is the prohibition against the SEC, to implement the
Constitutional/Statutory mandate of rotation of reserved seats/wards, there is
no answer forthcoming.
29. The rotation of the reserved seats for Scheduled Castes springs from
the concept of Fraternity enshrined in the Preamble to the Constitution, the
purpose of which is to assure the dignity of individual and the unity and
integrity of the nation. The Supreme Court, in Indira Sawhney and Others
v. Union of India and Others , 1992 Supp (3) SCC 217, while examining, in
detail, the rationale for granting reservation for the Scheduled Castes,
Scheduled Tribes and other Backward Classes, also observed that
reservations seek to achieve the constitutional goal of equality and fraternity.
The Rajasthan High Court, in Rajasthan State Electricity Board and Others
v. Sultan Mohd ., 1999 SCC Online Raj 734 has dwelt with the concept of
Fraternity in the following words:
“ The expression “fraternity” has not been defined in the
Constitution but it appears that this expression is wide enough
to include every bond of unity between two or more human
beings, whether the bond, is temporary or it is permanent,
whether it is contractual or sacramental; whether it is
voluntary or commanded by law. Suffice it to say that fraternity
referred to in the preamble to the Constitution of India, refers
to human bonds among the people as well as the bonds between
the sovereign and the subjects. The bond of fraternity, not only
binds the parties to it, it creates mutuality of interaction and
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shifting of certain responsibilities according to the nature and
form of the bond. Whatever may or may not be the obligation of
the parties on account of the bond of fraternity between them,
one thing is very obvious that unless the parties to the bond of
fraternity would not honour, protect and enforce the rights of
other parties to the bond, the bond of fraternity cannot survive.
The duty to honour, protect and enforce the rights of other
parties, is, therefore, inevitable if the bond of fraternity does
exist. It is this bond of fraternity which characterises humanity
and distinguishes it from those species who lack this bond.
Fraternity, in our opinion, imposes a duty on every party, to
honour, protect and enforce the rights of the other parties to the
bond and this appears to be at the root of the maxim that
wherever there is a right there must be a corresponding duty on
some other fellow and there must be a remedy available for
enforcing the right. The bond of fraternity which exists between
the sovereign and subjects, makes it obligatory on the part of
sovereign to enforce the rule of law and to administer justice to
all citizens by honouring their rights and by taking appropriate
steps to protect and enforce the same even if the citizen does
not ask for it.............. Since the Constitution of India aims at
promoting the bonds of fraternity and integrity of the Nation,
we feel that unless in exceptional cases, there is a just cause for
not honouring and protecting the rights of others, it should be
deemed to be a constitutional duty of the State and its agencies
as well as of every citizen to honour and protect the rights of
others, in order the bond of fraternity may not be destroyed and
the object of promoting the bond of fraternity may be fulfilled.
It goes without saying, that an attitute of indifference with
reluctance to honour and protect the rights of others, who are
re-lated by some bond of fraternity, particularly those who are
dependant on the State, its various organs and the rest of the
society for the protection of rights, lives and liberties and for
justice, would be incompatible with the noble ideals for which
the Constitution of India has been enacted.”
30. The grievance of the petitioners–that by de-reserving the earlier
reserved seats/wards for the Scheduled Castes, and reserving other
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seats/wards, wherein the population of the Scheduled Castes is lesser in
terms of percentage, the right of the petitioners to offer their candidatures
from such constituency (which are now reserved for the Scheduled Castes)
as a general candidate is affected, is completely misplaced. In our view,
there is a fundamental flaw in the said argument and approach of the
petitioners. The petitioners seem to think that the Scheduled Caste
population is entitled to vote and elect only a Scheduled Caste candidate, or
that a Scheduled Caste candidate could not be made to represent the interests
of the people in a seat/ward, where their population is relatively less.
Similarly, the petitioners seem to think that a non-Scheduled Caste candidate
cannot represent from a ward/seat, where the population percentage of
Scheduled Castes is relatively high. The aforesaid approach of the
petitioners strikes at the root of the concept of fraternity enshrined in our
Constitution.
31. The submission of Mr. Jha that the reservation notification/, or an
order for rotation could be issued only by the State Legislative Assembly, is
completely misplaced. Section 3(5) to 3(8), and Section 5(2) of the Act does
not require the making of a law – either for the purpose of specifying the
number of seats/ wards reserved for the Scheduled Castes in the municipal
corporation, or; which would stand reserved for the Women, or; for the
purpose of rotation of the reserved seats. The role of the Legislative
Assemble is only to make laws within the scope of its authority under the
Constitution. All that is required is that the competent government should
issue an order/ notification for the stated purpose.
32. The “Order”/ “Notification” that the competent government issues,
either under Section 3(5) to 3(8), or under Section 5(2) of the Act is only an
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executive order of the concerned Government.
33. The Act consciously uses the expression “Order”/ “Notification” in
Sections 3 and 5 of the Act. Therefore, the submission that the Legislative
Assembly of Delhi should have issued the “Order”/ “Notification” has no
merit. Being an executive order/ Notification, it is open to the concerned
government to delegate its powers which, in the present case, have been
delegated upon the State Election Commission. The petitioners, apart from
claiming that such powers could not be delegated, do not state as to what is
the legal objection to such delegation. We, therefore, do not find any merit
in this submission either. We may only hasten to add that the executive
powers of the government are co-extensive with the legislative fields carved
out in the relevant lists under Seventh Schedule of the Constitution. In Rai
Sahib Ram Jawaya Kapur & Ors. v. State of Punjab , AIR 1955 SC 549, the
Supreme Court has, inter alia, held:
“7. Article 73 of the Constitution relates to the executive
powers of the Union, while the corresponding provision in
regard to the executive powers of a State is contained in
Article 162. The provisions of these articles are analogous to
those of Sections 8 and 49(2) respectively of the Government
of India Act, 1935 and lay down the rule of distribution of
executive powers between the Union and the States,
following, the same analogy as is provided in regard to the
distribution of legislative powers between them. Article 162,
with which we are directly concerned in this case, lays down:
“Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect to
which the legislature of the State has power to make laws:
Provided that in any matter with respect to which the
legislature of a State and Parliament have power to make
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laws, the executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by this
Constitution or by any law made by Parliament upon the
Union or authorities thereof.”
Thus under this article the executive authority of the State is
exclusive in respect to matters enumerated in List II of
Seventh Schedule. The authority also extends to the
Concurrent List except as provided in the Constitution itself
or in any law passed by Parliament. Similarly, Article 73
provides that the executive powers of the Union shall extend
to matters with respect to which Parliament has power to
make laws and to the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of India by
virtue of any treaty or any agreement. The proviso engrafted
on clause (1) further lays down that although with regard to
the matters in the Concurrent List the executive authority
shall be ordinarily left to the State it would be open to
Parliament to provide that in exceptional cases the executive
power of the Union shall extend to these matters also.
Neither of these articles contain any definition as to what the
executive function is and what activities would legitimately
come within its scope. They are concerned primarily with the
distribution of the executive power between the Union on the
one hand and the States on the other. They do not mean, as
Mr Pathak seems to suggest, that it is only when Parliament
or the State Legislature has legislated on certain items
appertaining to their respective lists, that the Union or the
State executive, as the case may be, can proceed to function
in respect to them. On the other hand, the language of Article
172 clearly indicates that the powers of the State executive
do extend to matters upon which the State Legislature is
competent to legislate and are not confined to matters over
which legislation has been passed already. The same
principle underlies Article 73 of the Constitution. These
provisions of the Constitution therefore do not lend any
support to Mr Pathak's contention.
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ROHELLA
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12. It may not be possible to frame an exhaustive definition of
what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental
functions that remain after legislative and judicial functions
are taken away. The Indian Constitution has not indeed
recognised the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently
differentiated and consequently it can very well be said that
our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong
to another. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers
are delegated to it by the legislature. It can also, when so
empowered, exercise judicial functions in a limited way. The
executive Government, however, can never go against the
provisions of the Constitution or of any law. This is clear
from the provisions of Article 154 of the Constitution but, as
we have already stated, it does not follow from this that in
order to enable the executive to function there must be a law
already in existence and that the powers of the executive are
limited merely to the carrying out of these laws.
13. The limits within which the executive Government can
function under the Indian Constitution can be ascertained
without much difficulty by reference to the form of the
executive which our Constitution has set up. Our
Constitution, though federal in its structure, is modelled on
the British parliamentary system where the executive is
deemed to have the primary responsibility for the formulation
of governmental policy and its transmission into law though
the condition precedent to the exercise of this responsibility
is its retaining the confidence of the legislative branch of the
State. The executive function comprises both the
determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation,
the maintenance of order, the promotion of social and
economic welfare, the direction of foreign policy, in fact the
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carrying on or supervision of the general administration of
the State.”
34. We may now draw our attention to the judgement rendered by the
Division Bench of this Court in “We The Citizens Through Its Secretary”
(supra).
35. The Division Bench noted that the challenges raised in the said
petition was to the notification dated 06.02.2017, which was a similar
reservation order issued by the SEC for the purpose of providing reservation
of seats/wards for the Scheduled Castes, women candidates within
Scheduled Castes, and the women candidates generally.
36. The first ground of challenge, taken note of in paragraph-17 of the
said judgement, was that the criteria for reservation of Scheduled Castes
wards–on the basis of highest percentage of Scheduled Castes population in
a ward, in descending order, is contrary to the criteria which was adopted in
the elections held in 2007 and 2012.
37. The next ground taken was that the reservation of wards for
Scheduled Castes and women fell foul of, and were contrary to, Article 243T
of the Constitution of India.
38. We may note that the grievance now raised by the petitioners in the
present writ petitions, is to say that the reservation for Scheduled Castes
should be restricted, only in respect of wards, where their population is the
highest.
39. The Division Bench considered the constitutional scheme contained,
inter alia , in Article 243T of the Constitution of India, and Sections 3 and 5
of the Act. The Division Bench also took notice of the fact that Article 243T
deals with Municipalities, and not Parliamentary or Assembly
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constituencies.
40. The scheme of reservation, in respect of seats/wards provided under
the Act, was taken note of in paragraph -22 in the following words:
“22. The Act, therefore, provides for three kinds of
reservations. Reservation for Scheduled Castes; reservation
for women in the General category, which cannot be less than
50% of the total seats for General category and reservation of
seats for women in Scheduled Castes category which cannot be
less than 50% of the seats reserved for Scheduled Castes.”
41. The Division Bench observed that the notification dated 06.02.2017
reserved wards based upon the highest percentage of Scheduled Castes
population in the wards in the descending order in each of the three
Corporations.
42. We may observe that with a view to implementing the scheme of
reservation and rotation, the respondent-SEC has now reserved, in the same
manner, seats/wards which have descending population of Scheduled Castes,
after exclusion of those seats/wards which have been reserved in the
previous election.
43. In paras-27, 28 and 29, the Division Bench observed the following:
“27. The writ petitions challenging the 2007 and 2012
notifications were dismissed for several reasons, but primarily
on the ground that it was not for the Court or the petitioners
therein to fix a parameter or criteria to decide which ward
should be reserved for Scheduled Castes or women. The
contention that the reservation based upon the percentage of
Scheduled Castes population in the Assembly Segment or
Constituency was irrational and illogical was rejected for
reasons set out in the two judgments. The said judgments,
however, do not hold that the ratio of the population in
Assembly Segments or Constituency would be the right or the
only method or criteria to determine or decide which ward
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ROHELLA
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should be reserved for Scheduled Castes. This is not the ratio of
the said decisions as was contended by the petitioners. The
principle or percept to be applied for determining which
ward/seat should be reserved is for the Government to decide
Courts do not test the wisdom of the authorities or
appropriateness of the criteria adopted while exercising the
limited power of judicial review in such matters. Comparative
merit of the options available cannot be made the subject
matter of judicial review. The precept or the principle applied
in the notification can be challenged on the grounds and
reasons as were enunciated and settled in Hem Raj Arya and
Ors. Vs. Election Commission, Delhi & Ors. 1995 (32) DRJ
231”, which had dealt with the 1993/1994 notification and had
upheld the same, recording the following ratio:-
“(14) We are of the view that since no malafides on the
part of the respondents have been pleaded or proved in
adopting the stated method of reservation of seats, it is
not for this Court to go into the minute details of the
manner of reservation particularly when the Court is
neither conceived with any statutory formula which had
to be applied to test the correctness of the method
adopted nor any precise fool proof mathematical
formula can be spelt out for the said purpose. The
method adopted for reservation of wards cannot be
struck down merely because another method would be
more fairer, scientific or logical. The court should
interfere only if the impugned action is patently
arbitrary, unconsciously unfair, discriminatory or
malafide, which as already noted, is neither pleaded nor
proved. In that view of the matter we do not find any
ground to interfere. There is no merit in the petition and
the same is accordingly dismissed. No costs.”
28. This principle was reiterated by a single Judge in the case
of Ramesh Dutta (supra) in the following words:-
“38. Accordingly, I hold that these writ petitions are
maintainable. I also hold that there is no statutory
requirement for disclosing the manner of allotment of
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seats reserved for the Scheduled Castes or women in the
notifications issued under Section 5(2) of The DMC
Act. However, such a manner must be discernible from
the records of the Central Government (including its
delegates). The manner must be reasonable and not
arbitrary or discriminatory or mala fide. The manner
indicated in the present case of identifying seats reserved
for scheduled castes based on the twin criteria of ranking
seats in decreasing proportion of population and limiting
them to not more than two per assembly segments cannot
be interfered with as it is neither arbitrary nor
discriminatory nor malafide. Even the criterion of
allotting every third seat from the list of wards arranged
as per the serial numbers of the wards for women cannot
be questioned. However, as indicated above, the
impugned notification of 17.02.2007 has gone wrong in
not uniformly applying these criteria. The same is,
therefore, set aside.”
29. Similarly, in Vikas (supra), a Division Bench of this Court
had held that the SEC had carried out a considered exercise,
which by no stretch of imagination can be said to be irrational
or arbitrary. The methodology adopted cannot be struck down.
When the methodology adopted by the SEC cannot be faulted,
there would be no merit in the challenge. It was pertinently
observed:-
“37. It is our view that the SEC has carried out a
considered exercise which by no stretch of imagination
can be said to be irrational or arbitrary so that it would
fall foul of Ramesh Dutta’s case (supra) It has already
been explained that the methodology adopted in Ramesh
Dutta’s case (supra) for the elections in the year 2007
alone was not to be implemented for all future elections
and that the exercise then carried out was rational and
reasonable though there may have been flaws in the
implementation aspect. The SEC was, thus, within its
right to adopt a modified formula.” (emphasis supplied)
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ROHELLA
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44. The Division Bench also observed that there is no embargo or bar
under Article 243T of the Constitution, or the Act which prohibits or bars
the authorities from engaging themselves and undertaking an exercise to
improve and better upon the earlier principle/criteria, in relation to the
method of grant of reservation of seats/wards for municipal elections. The
Division Bench noted the reasons provided by the SEC to be good and valid,
for the principle adopted by it for granting reservation of seats/wards for
Scheduled Castes, which was the identification of the seats/wards on the
basis of descending order of population of Scheduled Castes in
constituencies within each municipality. Essentially, the same principle has
been applied even while issuing the present reservation order, while also is
implementing the Constitutional policy of rotation.
45. The Division Bench observed in “We The Citizens Through Its
Secretary” (supra), that it is not for the Courts to interfere with the criteria
adopted by the competent authority in this regard. Since, there is no
prohibition in law pointed out by the petitioners to the implementation of the
policy of rotation, the challenge raised by the petitioners is bound to fail.
Pertinently, the petitioners have not been able to point out any arbitrariness,
or lack of application of mind on the part of the SEC, either in the matter of
determination of the number of reserved seats for Scheduled Castes or
women candidates–which is based on the latest Census figures available
(sine no Census was conducted in 2021 due to the pandemic), or in the
matter of identification of the seats/wards which may be reserved for the
Scheduled Caste/women candidates.
46. We may also take note of the observations made by the Division
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ROHELLA
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Bench in para-40 of the aforesaid decision, which reads as follows:
“40. However, it would be for the authorities to consider
notifying the method or manner of rotation of seats in terms of
clause (e) to Section 5(2), when they carry out a delimitation
exercise and issue a notification for reservations of
wards/seats for Scheduled Castes as well as women
candidates. If the manner and method of rotation is specified,
it would possibly prevent disputes and controversies of this
nature and would ensure that there is proper rotation of
reserved seats, which should be encouraged and is required
under Article 243T as well as sub-sections (6) and (8) to
Section 3 and, Section 5 (2) of the Act. The method indicated
is not final and can be always modified and changed, if
required, as is permitted and allowed by Section 6 of the Act.”
47. So far as the submission of Maitri founded upon Section 9(1)(c) of the
Delimitation Act, 2002 is concerned, the same appears to be completely
misplaced in the light of the preamble to the Delimitation Act, 2002.
48. We may also notice the judgment of the Supreme Court in Meghraj
Kothari v. Delimitation Commission and Others , (1967) 1 SCR 400 and in,
particular, the following extract from paragraph 9 thereof, which reads as
follows:
“ 9. The preamble to the Delimitation Commission Act, 1962
shows there is an Act to provide for the readjustment of the
allocation of seats in the House of the People to the States, the
total number of seats in the Legislative Assembly of each State,
the division of each State into territorial constituencies for
elections to the House of the People and Legislative
Assemblies of the States and for matters connected therewith.”
49. Therefore, we reject the submission of Mr. Maitri premised on Section
9(1)(c).
50. For all the aforesaid reasons, we do not find any merit in either of
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these petitions. Accordingly, we dismiss the same in the aforesaid terms.
VIPIN SANGHI, J
JASMEET SINGH, J
FEBRUARY 2, 2022
SS
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Digitally Signed
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ROHELLA
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