ASHOK JINDAL vs. THE STATE ELECTION COMMISSION

THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 6.03.2007
WP (C) 1331/2007
RAMESH DUTTA ...Petitioner
- versus -
THE STATE ELECTION COMMISSION ...Respondent
WITH
WP (C) 1336/2997
ASHOK KUMAR ....Petitioner
-versus-
THE STATE ELECTION COMMISSION ...Respondent
W.P. (C) 1399/2007
ASHOK JINDAL ...Petitioner
-versus-
THE STATE ELECTION COMMISSION ...Respondent
WITH
W.P. (C) 1400/2007
NEERAJ KUMAR ...Petitioner
-versus-
THE STATE ELECTION COMMISSIONIONER & ANR. .. .Respondents
WITH
W.P. (C) 1401/2007
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MONU CHADHA ...Petitioner
-versus-
GOVT. OF NCT. & ANOTHER ...Respondents

WITH
W.P. (C) 1477/2007
RAJ SINGH MAAN ...Petitioner
-versus-
THE STATE ELECTION COMMISSION ...Respondent
WITH
W.P. (C) 1513/2007
N.K. JAIN ...Petitioner
-versus-
UOI AND OTHERS ...Respondents
Advocates who appeared in this case:
For the Petitioners : Mr V.P. Chaudhary Sr Advocate with Mr Digvijay Rai, Mr
S.P.Singh Chaudhary with Mr Imram Khan, Mr Krishan
Kumar, Mr R.K. Saini, Mr A.K. Singh, Mr Jasbir Singh Malik.
and Mr A.K. Singla.
For the Respondents : Mr Suresh Tripathi, Mr J.R. Midha with Mr Maneesh K.
Shukla, Mr Sanjeev Sabharwal, Ms Sonia Mathur.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
1. Whether Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
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BADAR DURREZ AHMED, J (ORAL)

The Challenge & Resistance
1. All these petitions pertain to the reservation of seats of
Councillors in the Municipal Corporation of Delhi [MCD] for scheduled
castes and women. The forthcoming election of the MCD would be
conducted on the basis of this reservation and allotment of seats. The
petitioners are those who intended to contest in the next election to be held
on 05.04.2007 but, have allegedly been shut out because the wards from
where they wanted to contest have been allotted to either scheduled castes
or women.
2. In these writ petitions the common challenge is to the
Notification dated 17.02.2007 bearing F.No. SEC/MCD/Admn./2007/3938
issued by the Election Commissioner of The National Capital Territory of
Delhi in purported exercise of powers conferred by sub-sections (7) and (8)
of section 3 of The Delhi Municipal Corporation Act, 1957 (hereinafter
referred to as "the DMC Act") read with the Government of India, Ministry
of Home Affairs Notification No. U-14011/187/93-Delhi dated
1
14.12.1993 , whereby the number of seats to be reserved for women
1 By this notification the Central Government directed that the powers exercisable by it under the fourth
proviso to sub-section (6) and sub-sections (7) and (8) of section 3 of the DMC Act shall be
exercisable by the Election Commission of the National Capital Territory of Delhi.
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belonging to the Scheduled Castes from amongst the seats reserved for the
Scheduled Castes were determined to be 16 and the number of seats for
women (General) from amongst the unreserved seats to be 76 and the same
were allotted to the wards as per the table given in the notification itself.
The challenge is that:-
(1) the Notification dated 17.02.2007 does not disclose the
manner in which the seats were reserved for scheduled castes
and/or for women;
(2) the manner indicated in the counter affidavit filed on behalf of
the State Election Commission for Delhi is arbitrary and
contrary to the constitutional provisions;
(3) even the manner indicated in the counter affidavit has not
been followed and this has given way to a policy of "pick and
choose" which is impermissible; and
(4) in any event, no notification under section 5(2)(c), (d) & (e) of
the DMC Act has been issued, which is a mandatory
requirement.

3. The challenge is resisted by the State Election Commission for
the National Capital Territory of Delhi on two counts. The first is the issue
of maintainability of these writ petitions in view of the provisions of article
243ZG of the Constitution of India. The second being that the criterion
adopted by the State Election Commission is objective and cannot be
faulted and has been uniformly followed in allotting the seats for
Scheduled Castes and women.
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The Background
4. Before I take up these issues, a brief note on the background
would be necessary. The Municipal Corporation of Delhi was established
under section 3 of the DMC Act. The Councillors are chosen by direct
election from the various wards into which Delhi is divided. Initially, the
total number of councillors was eighty (80) and, twelve (12) seats out of
2
these were reserved for members of the Scheduled Castes . By virtue of
the Constitution (Seventy-fourth) Amendment Act, 1992, Part IX-A
pertaining to municipalities was inserted in the Constitution. This was
followed by amendments in the DMC Act by virtue of Act No. 67 of 1993
which, inter alia, assigned 134 wards to DMC. By a notification dated
20.12.1993, the Lt. Governor of the NCT of Delhi, in exercise of powers
conferred by sub-section (6) of section 3 of the DMC Act and on the basis
of the population of Delhi as per the 1991 Census, determined the number
of seats to be 134 and also determined that, out of these seats, 25 shall be
reserved for the members of Scheduled Castes keeping in view the ratio of
Scheduled Caste population to the total population of Delhi based on the
1991 Census.
2 See: section 3(5) of the DMC Act.
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5. On 30.12.1993, the Election Commissioner of the NCT of Delhi
issued a notification no. F. Sec./Notification/F016/93/1215, in purported
exercise of powers under proviso 4 to sub-section (6), sub-sections (7) and
(8) of section 3 of the DMC Act, determining the total number of seats for
women and also for women belonging to the Scheduled Castes category
from amongst the seats reserved for Scheduled Castes and also determined
the manner of rotation of the total reserved seats in the Corporation. But,
3
this notification ran into problems and was withdrawn .
6. Consequently, another notification dated 18.03.1994 was issued
by the Election Commission of the NCT of Delhi determining that out of
the 25 seats reserved Scheduled Castes, 9 seats shall be reserved for
women belonging to Scheduled Castes. By a further Notification dated
21.03.1994, the said Election Commission determined that the total
number of seats reserved for women shall be 37 other than those reserved
for Scheduled Castes. Ultimately, by a notification dated 23.03.1994
issued under proviso 4 to sub-section (6) of section 3, sub-sections (7) and
(8) (including the proviso thereto) of section 3 and clauses (c), (d) and (e)
of sub-section (2) of section 5 of the DMC Act, the Election Commissioner
of the NCT of Delhi notified the reservation by allotment of seats for
3 See: 1995 I AD (Delhi) 467.
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women, members of Scheduled Castes and women belonging to Scheduled
Castes and the manner of reservation and rotation of reserved seats in
different wards for six terms. For this purpose, the 134 wards were divided
into five groups, four groups comprising of 32 wards each and a fifth group
of 6 wards. The reservation and rotation formulae were set out in the
notification on the basis of these groups.

7. This notification of 24.03.1994 was the subject matter of
challenge in CWP No. 1571/1994 ( Shri Hem Raj Arya & ors v. The
Election Commission of the NCT of Delhi & ors ). The petitioners therein
had alleged that the formula adopted by the said Election Commission for
reservation and rotation was wholly arbitrary, irrational, unintelligible,
confusing and suffered from various legal infirmities. As in the present
petitions, in that petition also, there was no dispute with regard to the total
number of seats and the reservation for Scheduled Castes, Schedule Caste
women and women in the general category. There was also no challenge
to the delimitation of wards as such. The only dispute was with regard to
the manner of reservation of wards in terms of sub-clauses (c) and (d) of
sub-section (2) of section 5 of the DMC Act. By its judgment dated
12.01.1995, a division bench of this court dismissed the petition (CWP No.
1571/1994) in the following manner:-
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"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 fair, scientific or logical. The court should only
interfere 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."
The general election of Councillors of the MCD in 1997 were held on the
basis of this notification of 23.03.1994.
9. Prior to the holding of elections for the next term, a notification
dated 27.11.2001 was issued by the Central Government, in supersession
of the said notification of 23.03.1994, directing and notifying that the
reservation by allotment of seats for women, members of the Scheduled
Castes and women belonging to the Scheduled Castes and the manner of
reservation and rotation of reserved seats in different wards for the next
elections to the Delhi Municipal Corporation shall remain the same as it
was for the earlier Delhi Municipal Corporation which was established
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after the commencement of the Delhi Municipal Corporation (Amendment)
Act, 1993 and as notified by the Election Commission of the NCT of Delhi
vide notification dated 23.03.1994 and shall continue to apply till fresh
delimitation of wards takes place. This meant that the reserved seats as
specified for the first term in the 23.03.1994 notification would continue to
be reserved for the next election without following the scheme of rotation
for the second term specified in the notification of 23.03.1994. As
indicated in the notification of 27.11.2001, the Central Government was of
the view that there is neither legal requirement under the DMC Act to
rotate the reserved seats every five years nor is it feasible to do so as it
involves taking and completion of census before ascertaining the
reservation and rotation of seats of the Delhi municipal Corporation. This
notification of 27.11.2001 was essentially a stop-gap arrangement as the
fresh delimitation of wards was to be undertaken after completion of the
2001 Census which was then underway and was unlikely to be completed
before the next election which was due in March, 2002. The 2002
elections were, therefore, held on the same basis as the 1997 elections
without rotating the reserved seats either of Scheduled Castes or of women.
10. The five-year term of the Councillors elected in 2002 is drawing
to an end. The new set of Councillors have to be in place by 10.04.2007.
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The elections are slated to be held on 05.04.2007. The notification for the
elections is scheduled to be issued on 10.03.2007. At present only the
moral code of conduct has been put in place on 23.02.2007. In the
meanwhile, the census 2001 has been completed. By a Notification dated
17.01.2007, the Lt Governor of the NCT of Delhi determined the total
number of seats of Councillors in the Municipal corporation of Delhi as
272 and out of that seats reserved for the members of the Scheduled castes
as 46. Another notification dated 07.02.2007 was issued by the
Administrator of NCT of Delhi, under section 5(2) of the DMC Act,
determining the extent of each of the aforesaid two hundred and seventy
two wards as noted in the Table ‘A’ given in the said notification.
11. Ultimately, the impugned notification dated 17.02.2007 came to
be issued. The notification reads as under:-
“(TO BE PUBLISHED IN PART IV OF THE DELHI GAZETTE EXTRAORDINARY)
STATE ELECTION COMMISSION
NATIONAL CAPITAL TERRITORY OF DELHI
OLD HINDU COLLEGE BUILDING COMPLEX, NIGAM BHAWAN,
KASHMERE GATE, DELHI-110 006.
F.No. SEC/MCD/Admn./2007 Dated the 17th Feb., 2007
NOTIFICATION
WHEREAS the Lt. Governor of the National Capital Territory of Delhi has determined total
number of seats of Councillors in the Municipal Corporation of Delhi as 272 and out of that seats
reserved for the members of the Scheduled Castes as 46 under Sub-section (6) of Section 3 of
the Delhi Municipal Corporation Act, 1957 (Act No. 66 of 1957) as amended by the Delhi
Municipal Corporation (Amendment) Act (Act No. 66 of 1993) and Delhi Municipal Corporation
(Amendment) Act 2007 (Delhi Act of 2007) hereinafter referred to as ‘the said act’ vide
Government of National Capital Territory of Delhi, Department of UD, Notification No.
7(367)(8)/2002/UD/989 dated 17.1.2007 published in Delhi Gazette Extraordinary;
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AND WHEREAS under sub-section (7) of Section 3 of the said Act, seats shall be reserved for
women belonging to the Scheduled Castes, from among the seats for the Scheduled castes, the
number of such seats being determined by the Central Government by order published in the
Official Gazette which shall not be less than one-third of the total number of seats reserved for
the Scheduled Castes;
AND WHEREAS under sub-section (8) of Section 3 of the said Act, seats shall be reserved for
women, the number of said seats being determined by the order published in Official Gazette by
the Central Government which shall not be less than one-third of total number of seats other
than those reserved for Scheduled Castes;
NOW, THEREFORE, in exercise of the powers conferred by sub section (7) and (8) of section 3
of the said Act read with the Government of India, Ministry of Home Affairs Notification No. U-
14011/187/93-Delhi dated the 14th December, 1993 I, S.P. Marwah, Election Commissioner of
the National Capital Territory of Delhi, hereby determine the number of seats to be reserved for
women belonging to the Scheduled Castes from amongst the seats reserved for the Scheduled
Castes as 16 and number of seats for women (General) from amongst the unreserved seats as
76, and allot the same as per the Table below :-

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N.B. - SC - indicates ward reserved for Scheduled Castes.
- SC (W) - indicates ward reserved for women belonging to Scheduled Castes.
- W – indicates ward reserved for women (General).
- G – indicates General (unreserved) ward.
( S.P. MARWAH )
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ELECTION COMMISSIONER OF THE NATIONAL CAPITAL TERRITORY OF DELHI.”
The Issue of Maintainability
12. Objection to the maintainability of the writ petitions was, as
mentioned above, taken straight-away by Mr Tripathi, the learned counsel
appearing on behalf of the Election Commission of the NCT of Delhi. He
referred to article 243ZG of the Constitution and submitted that the
notification of 17.02.2007 cannot be called in question in any court. He
placed reliance on the decision of the Supreme Court in the case of
Anugrah Narain Singh v. State of U.P. : (1996) 6 SCC 303 to contend
that Article 243ZG constituted a complete and absolute bar to considering
any matter relating to Municipal elections on any ground whatsoever. He
referred to the following passage in the said decision :-
“11. The question that came up for decision before the
Allahabad High Court has been stated in the judgment in the
following words:
... the common question raised in all these
petitions is as to whether in terms of Article 243-
ZG of the Constitution there is complete and
absolute bar in considering any matter relating to
Municipal Election on any ground whatsoever
after the publication of the notification for
holding Municipal Election.
12. The answer must be emphatically in the affirmative. The
bar imposed by Article 243-ZG is two-fold. Validity of laws
relating to delimitation and allotment of seats made under
Article 243-ZA cannot be question in any Court. No election
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to a Municipality can be questioned except by an election
petition. Moreover, it is well settled by now that if the election
is imminent or well underway, the Court should not intervene
to stop the election process. If this is allowed to be done, no
election will ever take place because someone or the other will
always find some excuse to move the Court and stall the
elections....”
Mr Tripathi referred to the Supreme Court decision in Lakshmi Charan
Sen v. A.K.M. Hassan Uzzaman: (1985) 4 SCC 689 wherein it was
observed thus:-
"no High Court in the exercise of its powers under Article 226
of the Constitution should pass any orders, interim or
otherwise, which has the tendency or effect of postponing an
election, which is reasonably imminent and in relation to
which its writ jurisdiction is invoked. The imminence of the
electoral process is a factor which must guide and govern the
passing of orders in the exercise of the High Court's writ
jurisdiction. The more imminent such process, the greater
ought to be the reluctance of the High Court to do anything, or
direct anything to be done, which will postpone that process
indefinitely by creating a situation in which, the Government
of a State cannot be carried on in accordance with the
provisions of the Constitution,.... The High Courts must
observe a self-imposed limitation on their power to act under
Article 226, by refusing to pass orders or give directions
which will inevitably result in an indefinite postponement of
elections to legislative bodies, which are the very essence of
the democratic foundation and functioning of our
Constitution."
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Mr Tripathi also placed reliance upon State of U.P. v. Pradhan Sangh
Kshettra Samiti:(1995) Supp(2) SCC 305 and Meghraj Kothari v.
Delimitation Commission: AIR 1967 SC 669: (1967) 1 SCR 400.
13. Mr V.P. Chaudhary, the learned senior counsel appearing on
behalf of the petitioners contended that the writ petitions were
maintainable and that the decision of the Supreme Court in Anugrah
Narain Singh (supra) , in fact, came to the aid of the petitioners.
According to him, even the decision in Hassan Uzzaman (supra) did not
militate against the power of this court to maintain the present petitions.
Those decisions, as contended by Mr Chaudhary, led to the conclusion that
courts should adopt a hands-off policy once the election process was
under-way or imminent. The courts should not interfere when such
interference would stall the process of election and thereby stultify the very
processes of democracy. However, there was no bar to entertain petitions
of the present nature as the election process had not started and the orders
sought are not such as would postpone the election. He also contended
that the bar of Article 243ZG is not at all attracted as the validity of any
law passed under Article 243ZA is not under challenge.
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14. At this juncture, a reference to the relevant provisions of the
Constitution and the DMC Act would be necessary. Article 243ZG, which
falls under Part IXA of the Constitution, reads as under:-
“ 243ZG. Bar to interference by courts in electoral matters.
— Notwithstanding anything in this Constitution,—
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies,
made or purporting to be made under article 243ZA shall not
be called in question in any court;
(b) no election to any Municipality shall be called in question
except by an election petition presented to such authority and
in such manner as is provided for by or under any law made
by the Legislature of a State.”
The present petitions clearly do not call in question any election and,
therefore, Article 243ZG (b) has no application. For clause (a) to apply,
the “validity” of a “law” relating to the delimitation of constituencies or a
“law” relating to the allotment of seats to such constituencies must be in
question. Moreover, such “law” must have been made or purported to have
been made under article 243ZA. What is challenged in the present
petitions is the notification dated 17.02.2007. Would this notification fall
within the meaning of “law”? Could it be said that the notification, if it is
“law”, was made or purports to have been made under article 243ZA?
These are some of the questions that need to be answered. First of all, let
us examine the provisions of article 243ZA :-
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“ 243ZA. Elections to the Municipalities. — (1) The
superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the
Municipalities shall be vested in the State Election
Commission referred to in article 243K.
(2) Subject to the provisions of this Constitution, the
Legislature of a State may, by law, make provision with
respect to all matters relating to, or in connection with,
elections to the Municipalities.”
A reference to sub-article (2) of article 243ZA would immediately make it
clear that the “law” that is referred to in article 243ZG must be a “law”
made by the Legislature of a State and it must make provision with respect
to matters relating to or in connection with elections to a municipality. The
provisions of sections 3 and 5 of the DMC Act are certainly “law” of this
kind. But, their validity is not in question. It is the notification which has
purportedly been issued under these provisions that is under challenge. To
appreciate the true nature of the notification dated 17.02.2007, it would be
necessary to examine the relevant provisions of sections 3 and 5 of the
DMC Act. Sections 3 and 5, so much as is relevant, reads as under:-
“3. Establishment of the Corporation .--
xxxx xxxx xxxx
xxxx xxxx
(6) Upon the completion of each census after the
establishment of the Corporation the number of seats shall be
on the basis of the population of Delhi 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
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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 shall in no case be
4
more than one hundred and thirty-four or less than eighty:
Provided further that the determination of seats as aforesaid
shall not affect the then composition of the Corporation until
the expiry of the duration of the Corporation:
Provided also that for the first election to the Corporation to
be held immediately after the commencement of the Delhi
Municipal Corporation (Amendment) Act, 1993, the
provisional population figures of Delhi as published in
relation to 1991 census shall be deemed to be the population
of Delhi 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 Central Government by order published in the Official
Gazette which shall not be less than one-third 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 Central Government which shall not be less
than the one-third of total number of seats other than those
reserved for the Scheduled Castes:
4 The figure has now been raised to two hundred and seventy two.
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Provided that such seats reserved for women shall be allotted
by rotation to different wards in such manner as the Central
Government may, by order published in the Official Gazette,
direct in this behalf.”
(underlining added)
“5. Delimitation of wards .-- (1) For the purposes of election
of councillors, Delhi 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 Delhi.

(2) The Central 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.”
(underlining added)
These statutory provisions with regard to reservation of seats for Sheduled
castes and women flow from article 243T of the Constitution of India,
which is as under:-
“243-T. 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
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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.”
(underlining added)
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15. So, the number of seats to be reserved for Scheduled castes is to
be determined by the proportion of the Scheduled Caste population to the
total population. Such seats reserved for the Scheduled Castes “may” be
allotted by rotation to different constituencies. Both, article 243T and the
fourth proviso to section 3(6) of the DMC Act, use the word “may”,
making it clear that it is not mandatory that the seats reserved for the
Scheduled Castes must be rotated. Rotation of seats reserved for women,
however, is mandatory. Both, article 243T and the provisions of section
3(7) & (8) of the DMC Act, make it mandatory that at least one third of the
seats shall be reserved for women. However, while article 243T makes the
rotation of these seats for women discretionary by the use of the word
“may” in sub-article (3), the DMC Act makes such rotation mandatory by
use of the word “shall” in the proviso to section 3(8). The acts which need
to done by the Central Government with regard to the number of seats and
the reservation of seats for scheduled castes and women are spelt out in
section 5(2) of the DMC Act. The Central Government is required to, 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. Therefore, while sub-sections (6), (7)
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and (8) speak of the total number of seats, the number of seats to be
reserved for scheduled castes and the number of seats to be reserved for
women, section 5(2) deals with not only the number of wards and the
extent of each ward, but, also with the identification of the wards in which
seats shall be reserved for the Scheduled Castes; the identification of the
wards in which seats shall be reserved for women; and, the manner in
which seats shall be rotated under sub-sections (6) and (8) of section 3.
16. Examined in this light, the notification dated 17.02.2007,
though it purports to be a notification issued under sub-sections (7) and (8)
of section 3 of the DMC Act, touches upon the subjects of section 5(2) of
the DMC Act inasmuch as it identifies the seats reserved for scheduled
castes and for women. Of course, it does not specify the manner of
rotation of these seats, as, according to the counsel for the Election
Commission of NCT of Delhi, the manner of rotation need not be specified
now as the allotment of seats is being done afresh after the increase in the
number of seats. It would be done the next next time when the need to
rotate the seats would arise.

17. Coming back to the question of whether the Notification of
17.02.2007 is “law” as is referred to in Article 243ZA and 243ZG of the
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Constitution, I find that the “law” that is referred to in Article 243ZA is a
law made by a legislature of a State. The notification dated 17.02.2007 has
been issued, not by a legislative body, but by the exercise of a power
under a statutory provision for issuance of such a notification. So, though
in the wider sense, the said notification may fall within the ambit of “law”
as is commonly understood, it would not be “law made by a legislature of a
State”. An examination of the issue of whether the notification was issued
in exercise of a legislative function or an administrative function, may not
be necessary, inasmuch as Article 243ZA of the Constitution speaks of a
“law made by a legislature” and not a law made by a delegate in exercise of
a legislative function under a particular statute. However, since this issue
was discussed in the course of arguments, it would be instructive to note
that the Supreme Court in the case of UOI v. Cynamide India Limited:
( 1987) 2 SCC 720 observed that while an attempt to draw a distinct line
between a legislative and administration functions has been said to be
“difficult in theory and impossible in practice”, it would be necessary that
the line is sometimes drawn as different legal rights and consequences may
follow. The Supreme Court was of the view that the distinction between
the two has usually been expressed as “one between the general and
particular”. A legislative act involves the creation and promulgation of a
general rule of conduct without reference to particular cases; whereas, an
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administrative act is the making of and issuance of a specific direction or
the application of a general rule to a particular case in accordance with the
requirements of policy. The Court reiterated that legislation is a process of
formulating a general rule of conduct without referring to particular cases
and usually operating in the future and that administration is the process of
performing particular acts, of issuing particular orders or of making
decisions which apply general rules to particular cases.
18. Viewed in this light, it becomes immediately clear that the
provisions of the DMC Act formulate the general rule for de-limitation,
number of seats to be reserved for Scheduled Castes and women, the
possibility of rotating such seats etc. The specific and particular orders
have been left to the Central Government. That has been done by virtue of
notifications issued from time to time. The Notification dated 17.02.2007
is one such Notification. It relates to a particular situation applying the
general Rules prescribed under the DMC Act. Therefore, in my view, the
impugned Notification of 17.02.2007 would not fall within the description
of a Notification having been issued in exercise of a legislative function.
19. In this connection, the Constitution Bench decision of the
Supreme Court in the case of Shri Sitaram Sugar Co. Ltd. v. UOI: (1990)
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3 SCC 223 (at page 246), may be fruitfully referred to. This decision also
echoed the sentiment of the earlier decision in the case of UOI v.
Cynamide India Limited (supra) that to distinguish clearly between
legislative and administration functions has been regarded as “difficult in
theory and impossible in practice”. Referring to authoritative texts on the
subject, the Supreme Court observed that legislative power is the power to
prescribe the law for the people in general, while administrative power is
the power to prescribe the law for them, or apply the law to them in
particular situations. The Supreme Court observed that the Courts, for
practical reasons, have distinguished legislative orders from the rest of the
orders by reference to the principle that the former is of general
application. They are made formally by publication and for general
guidance with reference to which individual decisions are taken in
particular situation. It was further observed in the said decision ( Sita Ram
Sugar Co. Ltd. ) that a statutory instrument (such as a rule, order or
regulation) emanates from the exercise of delegated legislative power
which is a part of the administrative process resembling enactment of law
by the legislature. The Supreme Court also observed that in border line or
mixed cases it is best that they are left unclassified. So, while I am of the
view that the Notification, in question, has not been issued in exercise of a
legislative function, it may be argued that the situation is not so clear-cut.
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As indicated in the Supreme Court decision referred to above, in such a
situation, it would be best to leave it unclassified as either a Notification
issued in exercise of a legislative function or an administrative function.
This would, as indicated above, not have any bearing on the decision that
the Notification of 17.02.2007 is not covered by the expression “law made
by a legislature of a State” and, therefore, would not be “law” made or
purporting to be made under Article 243ZA. Consequently, the bar to
interference by Courts set up by the provisions of Article 243ZG (a) of the
Constitution would not be triggered.
20. Let me now examine the decision of the Supreme Court in
Anugrah Narain Singh (supra) which was heavily relied upon by Mr
Tripathi, who appeared on behalf of the Election Commission of NCT of
Delhi. Mr Tripathi had, as pointed out above, contended on the strength of
the said decision, that Article 243ZG constitutes a complete and absolute
bar to consider any matter relating to Municipal elections on any ground
whatsoever. It is true that the Supreme Court in Anugrah Narain Singh
(supra) , in paragraph 12 quoted earlier in this judgment, had observed that
the validity of laws relating to delimitation and allotment of seats made
under Article 243ZA cannot be questioned in any Court and that it was
well settled that if the election is imminent or well under way the Court
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should not intervene to stop the election process. But, these observations
must be seen in the light of the special circumstances and other
observations made in the said decision itself, as submitted by the learned
counsel for the petitioners. First of all, it must be noted that the petitions
which were the subject matter before the Supreme Court in Anugrah
Narain Singh (supra) were writ petitions which had been filed not only
after the process of delimitation had been completed long time ago but also
after the issuance of the election notification. To be precise, the process of
delimitation had been completed before June, 1995 and the election
notification had been issued on 11.10.1995. The writ petitions were filed
later. In this context, the Supreme Court observed as under:-
“7. Another important feature of this case, which was ignored
by the High Court, was that the process of reservations for
various wards and delimitation of constituencies had been
completed before June 1995. There was ample opportunity
under the Act to raise objections before finalisation of the
delimitation process. Section 32 of the Uttar Pradesh
Municipal Corporation Adhiniyam, 1959 (hereinafter referred
to as “the U.P. Act”) has empowered the State Government to
divide the municipal areas into wards on the basis of the
population and determine the number of wards into which the
municipal area should be divided. The State Government may
also determine the number of seats to be reserved for the
Scheduled Castes, Scheduled Tribes, Backward Classes and
women. The State Government is required to issue an order
for this purpose which has to be published in the Official
Gazette for objections for a period of not less than seven days.
After considering the objections that may be filed, the draft
order may be amended, altered or modified. Whatever the
State Government does, after considering the objections, will
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be the final order. That process has been gone through. If it is
the case of the writ petitioners that they filed objections to the
draft orders and their objections were overruled arbitrarily,
they should have challenged it forthwith. In fact the
notifications of reservation of various wards and delimitation
of constituencies had been completed before June 1995. After
all these things became final, the writ petitioners waited till
26-10-1995 to file this writ petition when the last date for
withdrawal of nomination papers was over. This writ petition
should have been dismissed on the ground of laches only. At a
time when the election process was in full swing, huge
expenditures had been incurred by the candidates, the political
parties and also the Government for this purpose, some of the
candidates had already been declared elected unopposed, the
Court decided to intervene and stop the elections.”
(underlining added)
A reading of the above passage from the Supreme Court decision in
Anugrah Narain Singh (supra) indicates that the Supreme Court was of
the view that if the petitioners therein were aggrieved by the reservation of
wards and delimitation of constituencies they should have challenged it
forthwith when the exercise had been completed by June, 1995. The writ
petitioners ought not to have waited till 26.10.1995 to file the writ petitions
when even the last date for withdrawal of nominations papers was over.
The Supreme Court observed that the writ petitions ought to have been
dismissed on the ground of laches alone and the Court ought not to have
interfered and decided to stop the elections at a time when the election
process was in full swing, huge expenses had been incurred by the
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candidates and political parties and also some of the candidates had already
been declared elected unopposed. None of these special circumstances
arise in the present case. The notification was issued on 17.02.2007. It
was published in the newspapers on 18.02.2007 which happened to be a
Sunday. The petitioners lost no time and the first of the writ petitions was
filed on 22.2.2007. The Model Code of Conduct was made applicable on
23.3.2007 and the election notification is yet to be issued. Therefore, the
situation as obtaining in the case before the Supreme Court and the one
that presents itself in these petitions are entirely different.
21. There is no doubt that the Court cannot interfere with the
election process once it is underway. The election process commences by
the issuance of the election notification. That event has not yet happened.
There were further special circumstances before the Supreme Court in the
case of Anugraya Narain Singh (supra) none of which are present in the
present case. The special circumstances being, as indicated in paragraph
14 of the said decision, that no Municipal election had been held in the
State for nearly ten years and the dates of the elections were fixed under
the direction given by the High Court in another case. The Supreme Court
observed that the elections of Panchayats and Municipal Bodies cannot be
over-emphasised and that if the holding of elections is allowed to be stalled
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on the whims of a few individuals, then grave injustice would be done to
crores of other voters who have the right to elect their representatives to
the local bodies. The Court observed that as a result of the order of the
High Court of Allahabad, elections of the local bodies which were going to
be held after a long lapse of nearly ten years were postponed indefinitely.
None of these special circumstances arise in the present case. Moreover,
there is no pronouncement in the said decision of the Supreme Court with
regard to there being no power with the High Court to interfere at a stage
before the issuance of election notification (i.e., prior to the
commencement of the election process) and in a manner which would not
have the effect of stalling the election. The Supreme Court also referred to
the earlier decision in the case of Hassan Uzzaman (supra) , wherein it was
held that the Court must not interfere with the election process and must
not pass any order, interim or otherwise, which would have the effect of
postponing an election, which is reasonably imminent. It observed that the
imminence of the electoral process is a factor which must guide and
govern the passing of orders in the exercise of High Court's writ
jurisdiction. The more imminent such process, the greater ought to be the
reluctance of the High Court to do anything, or direct anything to be done
which will postpone the process indefinitely. The High Courts were
directed to observe a self-imposed limitation on their power to act under
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Article 226, by refusing to pass orders or give directions which would
inevitably result in an indefinite postponement of elections to the
legislative bodies which are the very essence of the democratic foundation
and functioning of our Constitution. These observations of the Supreme
Court make three things clear. Firstly, the High Courts have power under
Article 226 of the Constitution to pass orders when the election process has
not commenced. The second, that the High Court must exercise a self-
imposed limitation to invoke such powers when the elections are
reasonably imminent and this limitation must be directly proportional to
the imminence of the election process. Thirdly, the High Court must not
act in a manner which would result in an indefinite postponement of an
election. It is, therefore, clear that the power to act in such matters is there
under Article 226 of the Constitution but it must be exercised subject to the
limitations mentioned above.
22. It must be re-emphasised that in the present case the provisions
of the DMC Act are not challenged. There is also no challenge to the
exercise of delimitation carried out or to the extent of the constituencies
after the exercise of delimitation. There is also no challenge to the number
of constituencies nor is there any challenge to the number of seats to be
reserved for Scheduled Castes and women. On the other hand, in Anugrah
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Narain Singh’s case (supra) , the validity of the provisions of the Uttar
Pradesh Municipal Adhiniyam, 1959 were in question. In this context, the
Supreme Court held:-
“24. The validity of Sections 6-A, 31, 32 and 33 of the U.P.
Act dealing with delimitation of wards cannot be questioned
in a court of law because of the express bar imposed by
Article 243-ZG of the Constitution. Section 7 contains rules
for allotment of seats to the Scheduled Castes, the Scheduled
Tribes and the Backward Class people. The validity of that
section cannot also be challenged. That apart, in the instant
case, when the delimitation of the wards was made, such
delimitation was not challenged on the ground of colourable
exercise of power or on any other ground of arbitrariness. Any
such challenge should have been made as soon as the final
order was published in the Gazette after objections to the draft
order were considered and not after the notification for
holding of the elections was issued. As was pointed out in
5
Lakshmi Charan Sen case , that the fact that certain claims
and objections had not been disposed of before the final order
was passed, cannot arrest the process of election.”
(underlining added)
23. Since the validity of the provisions of the Act had been
questioned, the Supreme Court held that the same was beyond question in a
Court of law because of the express bar imposed by Article 243ZG of the
Constitution. But, it is also apparent that the Supreme Court was of the
view that if there was any challenge to the delimitation of wards on the
ground of colourable exercise of power or on any other ground of
arbitrariness, such a challenge should have been made as soon as the final
5 (1985) 4 SCC 689
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order was published in the Gazette and not after the notification for
holding of elections was issued. Clearly, even the delimitation of wards
could be challenged on the ground of colourable exercise of power or on
any other ground of arbitrariness provided the challenge was brought to the
Court before the notification for holding of elections was issued. In the
present case, immediately upon the issuance of a Notification of
17.02.2007, the petitioners have approached this Court, prior to the
issuance of notification for holding of elections. Not only this, the
delimitation of wards is not in question nor is the validity of any provision
of the DMC Act. The only question is with regard to the manner in which
seats have been allocated for the Scheduled Castes and women. Clearly,
there is nothing in the decisions of Anugrah Narain Singh (supra) or
Hassan Uzzaman (supra) which militates against the maintainability of the
present writ petitions.
24. Another aspect of Anugrah Narain Singh’s case (supra) needs
to be considered inasmuch as that clearly shows that the present writ
petitions are maintainable. Section 32 of the U.P. Municipal Corporation
Adhiniyam, 1959 reads as under:-
“32. Delimitation Order .-- (1) The State Government shall by
order --
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( a ) divide a municipal area into wards in such manner that the
population in each ward shall, so far as practicable, be the
same throughout the municipal area;
( b ) determine the number of wards into which a municipal
area shall be divided;
( c ) determine the extent of each ward;
( d ) determine the number of seats to be reserved for the
Scheduled Castes, the Scheduled Tribes, Backward Classes
and women.
(2) The draft of the Order under sub-section (1) shall be
published in the Official Gazette for objections for a period of
not less than seven days.

(3) The State Government shall consider any objection filed
under sub-section (2) and the draft Order shall, if necessary,
be amended, altered or modified accordingly and thereupon it
shall become final.”
25. It may be noted that this provision is similar to Section 5 of the
DMC Act. The only difference being that the requirement of publishing a
draft order and of inviting objections and taking out a final list is not there
in the DMC Act. But, that does not have any bearing for the purposes of
the present writ petitions. In respect of Section 32 of the UP Act of 1959,
the Supreme Court, in Anugrah Narain Singh (supra) observed as under:-
“25. In this connection, it may be necessary to mention that
there is one feature to be found in the Delimitation
Commission Act, 1962 which is absent in the U.P. Act.
Section 10 of the Act of 1962 provided that the Commission
shall cause each of its order made under Sections 8 and 9 to be
published in the Gazette of India and in the Official Gazettes
of the States concerned. Upon publication in the Gazette of
India every such order shall have the force of law and shall
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not be called in question in any Court. Because of these
specific provisions of the Delimitation Commission Act,
1962, in the case of Meghraj Kothari v. Delimitation
6
Commission , this Court held that notification of orders passed
under Sections 8 and 9 of that Act had the force of law and
therefore, could not be assailed in any court of law because of
the bar imposed by Article 329. The U.P. Act of 1959,
however, merely provides that the draft order of delimitation
of municipal areas shall be published in the Official Gazette
for objections for a period of not less than seven days. The
draft order may be altered or modified after hearing the
objections filed, if any. Thereupon, it shall become final. It
does not lay down that such an order upon reaching finality
will have the force of law and shall not be questioned in any
court of law. For this reason, it may not be possible to say that
such an order made under Section 32 of the U.P. Act has the
force of law and is beyond challenge by virtue of Article 243-
ZG. But any such challenge should be made soon after the
final order is published. The Election Court constituted under
Section 61 of the U.P. Act will not be competent to entertain
such an objection. In other words, this ground cannot be said
to be comprised in sub-clause ( iv ) of clause ( d ) of Section
71 of the U.P. Act. In the very nature of things, the Election
Court cannot entertain or give any relief on this score. The
validity of a final order published under Section 33 of the U.P.
Act is beyond the ken of Election Court constituted under
Section 61 of the said Act.”
(underlining added)
It is abundantly clear that the Supreme Court distinguished the provisions
of Section 32 of the U.P. Act of 1959 from the provisions of the
Delimitation Commission Act, 1962, which were considered in Megraj
Kothani (supra) (another decision relied upon by Mr Tripathi who
appeared on behalf of the Election Commission of NCT of Delhi). The
6 AIR 1967 SC 669
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Supreme Court observed that it may not be possible to say that an order
made under Section 32 of the UP Act of 1959, had the force of law and
was beyond challenge by virtue of Article 243ZG of the Constitution. It,
further held that any such challenge should be made soon after the final
order is published. So, a distinction was made between the order made
under the Delimitation Commission Act, 1962, which, in terms of the
provisions therein, had the “force of law” and the provisions of Section 32
of the U.P. Act, which, though final, did not have the force of law and was,
therefore, not beyond the challenge by virtue of Article 243ZG. The only
thing was that the challenge should be made immediately or soon after the
publication of the final order. There is no provision in the DMC Act also
which expressly makes an order passed by the Central Government under
Section 5 (2) of the DMC Act to have the force of law. Clearly, an order
made by the Central Government under Section 5 (2) determining the
number of wards, extent of each ward, the wards in which seats shall be
reserved for the Scheduled Castes, the wards in which the seats shall be
reserved for women and the manner in which seats shall be rotated under
Sub-Section (6) and (8) of Section 3 of the
DMC Act would not have the force of law and, consequently, would not
be beyond challenge by virtue of Article 243ZG of the Constitution.
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26. In Election Commission of India v. Ashok Kumar : 2000 (8)
SCC 216, the Supreme Court observed that the jurisdiction of Courts is
carved out of the sovereign power of the State and that people of free
India are sovereign and the exercise of judicial power is articulated in the
provisions of the Constitution to be exercised by Courts under the
Constitution and the laws thereunder. It cannot be confined to the
provisions of imperial statutes of a bygone age. It held that access to Court
is an important right vested in every citizen, implying the existence of
power of the Court to render justice according to law. Where a statute is
silent and judicial intervention is required, Courts strive to redress
grievances according to what are perceived to be principles of justice,
equity and good conscience. The Supreme Court also held that it is no
longer debatable that the power of judicial review is a basic feature of the
Constitution. Referring to an earlier decision in the case of Digvijay Mote
v. UOI: 1993 (4) SCC 175 , the Supreme Court in Ashok Kumar (supra)
held that the powers conferred on the Election Commission are not
unbridled; judicial review would be permissible over a statutory body
exercising its function affecting public law rights though the review would
depend on the facts and circumstances of each case. It was pointed out that
the power conferred on the Election commission by virtue of Article 324
(and, similarly on the Election Commission of NCT of Delhi under Article
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243ZA (1)) has to be exercised not mala fide, not arbitrarily, not with
partiality but in keeping with the guidelines of the rule of law. In Ashok
Kumar (supra) the Supreme Court summed up the powers of Court, with
reference to Article 329 (b) (which is similar to Article 243 ZG (b)) as
under:-
“32. For convenience sake we would now generally sum up
our conclusions by partly restating what the two Constitution
Benches have already said and then adding by clarifying what
follows therefrom in view of the analysis made by us
hereinabove:
( 1 ) If an election, (the term election being widely interpreted
so as to include all steps and entire proceedings commencing
from the date of notification of election till the date of
declaration of result) is to be called in question and which
questioning may have the effect of interrupting, obstructing or
protracting the election proceedings in any manner, the
invoking of judicial remedy has to be postponed till after the
completing of proceedings in elections.

( 2 ) Any decision sought and rendered will not amount to
“calling in question an election” if it subserves the progress of
the election and facilitates the completion of the election.
Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the
election.

( 3 ) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well-
settled parameters which enable judicial review of decisions
of statutory bodies such as on a case of mala fide or arbitrary
exercise of power being made out or the statutory body being
shown to have acted in breach of law.
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( 4 ) Without interrupting, obstructing or delaying the progress
of the election proceedings, judicial intervention is available if
assistance of the court has been sought for merely to correct or
smoothen the progress of the election proceedings, to remove
the obstacles therein, or to preserve a vital piece of evidence if
the same would be lost or destroyed or rendered irretrievable
by the time the results are declared and stage is set for
invoking the jurisdiction of the court.

( 5 ) The court must be very circumspect and act with caution
while entertaining any election dispute though not hit by the
bar of Article 329( b ) but brought to it during the pendency of
election proceedings. The court must guard against any
attempt at retarding, interrupting, protracting or stalling of the
election proceedings. Care has to be taken to see that there is
no attempt to utilise the court's indulgence by filing a petition
outwardly innocuous but essentially a subterfuge or pretext
for achieving an ulterior or hidden end. Needless to say that in
the very nature of the things the court would act with
reluctance and shall not act, except on a clear and strong case
for its intervention having been made out by raising the pleas
with particulars and precision and supporting the same by
necessary material.”
It is obvious that even with regard to Article 329 (b) which is pari materia
to Article 343Z (b), judicial review is not completely barred. It is
permissible if the decision does not amount to “calling in question an
election” and if it subserves the progress of an election and facilitates the
completion of an election. Within these parameters, judicial review of
decisions of statutory bodies on the ground of mala fides or arbitrary
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exercise of power or exercise of authority in breach of law can be called in
question before the High Court.

27. A review of all the above decisions clearly indicates that in the
fact situation obtaining in the present case, there is no bar to the
maintainability of the present writ petitions. Firstly, the validity of a
statute is not called any question. Secondly, the Notification dated
17.02.2007 does not have the force of law and, therefore, it is not hit by the
bar under Section 243ZG. Thirdly, the election process has not
commenced. Fourthly, the directions sought by the petitioners are to
facilitate the election in accordance with the rule of law and not to impede
the process of election. For all these reasons, I hold that the writ petitions
are maintainable.
Was it necessary to disclose the manner in which seats
were reserved for Scheduled Castes and/or for women in
the notification dated 17.02.2007 itself?
28. It was contended by Mr V.P. Chaudhary that the manner in
which the seats were reserved for Scheduled Castes and/or for women has
not been indicated in the Notification of 17.02.2007 and, therefore, the
Notification is liable to be set aside. This contention has to be examined in
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the context of the provisions themselves. The fourth proviso to Section 3
(6) of the DMC Act stipulates 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. Similarly, the proviso to Section 3 (8) of the DMC Act prescribes
that seats reserved for women shall be allotted by rotation to different
wards in such a manner as the Central Government may, by order
published in the Official Gazette, direct in this behalf. Section 5 (2) (e)
requires the Central Government to, by order in the Official Gazette,
determine the manner in which seats shall be rotated under Sub-Sections
(6) and (8) of Section 3. There is, therefore, no doubt that when the
Central Government decides to allot seats by rotation for the Scheduled
Castes, the manner of such rotation must be notified and published in the
Official Gazette. It is also clear that insofar as seats reserved for women
are concerned, the same have to be allotted by rotation to different wards
and the manner of such rotation has to be published in the Official Gazette.
However, there is no stipulation in the provisions of the DMC Act which
requires the Central Government to notify the manner in which seats shall
be reserved for the Scheduled Castes or the wards in which seats shall be
reserved for women. It is only the manner of rotation of such seats which
requires to be published in the Official Gazette. Therefore, the contention
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of the learned counsel for the petitioners that the manner in which the seats
have been reserved for Scheduled Castes and for women by virtue of the
notification dated 17.02.2007 has not been disclosed in the Notification, is
of no consequence. The said Notification has been issued after the fresh
exercise of delimitation had been carried out. The number of seats have
been increased from 134 to 272. Consequently, the number of seats for
Scheduled Castes and for women have also been altered. In fact, the entire
area covered by the Municipal Corporation of Delhi bears a new look as
new wards have been created and existing wards have been altered. This
being the first Notification after the exercise of delimitation, the question
of rotation of seats reserved for Scheduled Castes and/or for women would
not arise for the impending election. It would, of course, arise for the next
election. So, insofar as the present Notification is concerned, rotation not
being contemplated, there was no necessity for notifying the manner of
allotment of seats for Scheduled Castes and/or for women. This, however,
does not mean that there should be no manner at all and that the Central
Government can arbitrarily determine which are the seats which need to be
reserved for Scheduled Castes and which for women. As long as the
manner exists and is discernable from the records, it would not be
necessary to publish the same in the Official Gazette. Therefore, the non-
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publication of the manner of allotment of seats for Scheduled Castes and/or
for women, ipso facto, would not mean that the Notification is bad.
Whether the manner in which seats were reserved for
Scheduled Castes and/or for women, as indicated in the
counter affidavit filed on behalf of the State Election
Commission, was arbitrary and contrary to
Constitutional provisions?
29. It was contended on behalf of the petitioners that the manner
indicated in the said counter affidavit was arbitrary and repugnant to the
provisions of the Constitution. To appreciate this submission, it would be
necessary to examine the manner indicated in the counter affidavit. The
Election Commission of NCT of Delhi has filed a counter affidavit through
its Secretary Mr V.K. Harit. It is stated in the counter affidavit that the Lt.
Governor of Delhi by an order dated 17.01.2007 was pleased to determine
46 seats to be reserved for the members belonging to Scheduled Castes. It
was pointed out that by virtue of the Notification dated 14.12.1993, the
powers of the Central Government under Section 3 (7) and 3 (8) of the
DMC Act, were delegated to the Election Commission for NCT of Delhi.
In exercise of such power, it was determined that 16 seats out of the seats
reserved for Scheduled Castes were to be reserved for women belonging to
the Scheduled Castes. A further 76 seats were to be reserved for women
belonging to the general category.
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30. The seats were allocated by first allotting the seats reserved for
Scheduled Castes. These 46 seats were allotted on the basis of arranging
them in descending order of percentage of population of Scheduled Castes
in each of the wards and, thereafter, by allotting them serially, subject to
the condition that not more than two seats are reserved for Scheduled
Castes in any one assembly segment. The counter affidavit reveals that the
underlying object of such an exercise is that the seats reserved for
Scheduled Castes are not concentrated in one place and that they are, as far
as possible, evenly distributed. After the exercise of allotting 46 seats for
Scheduled Castes was done, the next task was to allot 16 seats out of these
46 seats to women belonging to the Scheduled Castes. This was achieved
by taking the first of the two seats in each of the assembly segments and
allocating them for women. This was adopted for the first 15 assembly
th
constituencies. The 16 seat was allotted to the last assembly constituency
which had only one reserved seat for Scheduled Castes and, accordingly,
Ward No. 245 – Durga Puri was reserved for Scheduled Caste woman.
31. Thereafter, the exercise of allotting the 76 seats for women in
the general category was undertaken. The avowed formula was that every
third seat among the unreserved seats was to be allotted to women. This
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was also subject to the condition that not more than two seats be reserved
either for Scheduled Castes or for woman in a assembly constituency.
32. The grievance of the petitioners is that there is no rational basis
for allocating Scheduled Caste seats in accordance with the said
descending order of percentage of population. It is also contended that
there is no rational basis for fixing two seats per assembly segment as the
wards have no link with assembly segments.
33. As regards the question of allotting seats reserved for Scheduled
Castes candidates on the basis of percentage of population or of ranking
the same in descending order is concerned, it may be instructive to
examine the provisions of Section 38 of the Government of National
Capital Territory of Delhi Act, 1991, which deals with the power of the
Election Commission to delimit constituencies for the Legislative
Assembly. The said Section 38, inter alia , provides that the Election
Commission shall, in the manner provided therein, distribute and delimit
seats to the Legislative Assembly having regard to, inter alia , the
provision that constituencies in which seats are reserved for the Scheduled
Castes shall, as far as practicable, be located in areas where the proportion
of their population to the total population is comparatively large. This
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makes it clear that seats are to be reserved for Scheduled Castes on the
basis of the proportion of their population to the total population. Seats
which have a higher proportion would be given preference for reservation
over those which have a lower proportion. Therefore, the allotment of
seats for Scheduled Castes on the basis of ranking them in descending
order of the percentage of population of Scheduled Castes in such seats, is
clearly contemplated under Section 38 of the Government of NCT Act,
1991 insofar as Legislative Assembly Constituencies are concerned. It is
true that there is no such prescription in the DMC Act. Perhaps, because,
under the DMC Act, rotation of such seats is contemplated whereas under
the Government of NCT Act, 1991 no such rotation is contemplated. Be
that as it may, the fact remains that allotment of seats on the basis of
descending proportion of population of Scheduled Castes has been
recognized as a valid manner of allotment of seats and, therefore, the same
cannot be regarded as being irrational or arbitrary or contrary to the
Constitution.
34. Insofar as the contention that there is no rational basis of
limiting allotment of seats for Scheduled Castes or women to two per
assembly segment is concerned, it appears that the only basis for this
submission is that Municipal wards have no connection with Legislative
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Assembly seats. While this may be true in the strict sense, it must be noted
that the wards themselves have been arranged in a manner that no ward
falls within two assembly segments. The wards have been arranged in
groups of four per each assembly segment. Sixty-eight (68) assembly seats
fall within the Municipal Corporation of Delhi and, therefore, there are 68
x 4 = 272 wards for the Municipal Corporation of Delhi. Therefore, it
would not be correct to say that the wards have no link or nexus with
assembly segments. They have a definite geographical link with their
respective assembly segments and, by restricting the reservation of two
wards for each assembly segment for Scheduled Castes and women, the
Election Commission has sought to achieve the object of distributing the
reserved seats evenly, as far as possible, through-out the area covered by
the Municipal Corporation of Delhi. Clearly, the objection raised by the
petitioners is untenable.
Whether even the manner indicated in the counter
affidavit has not been followed and this has given way to a
policy of “pick and choose”?
35. The next contention on behalf of the petitioners was that even if
it is assumed that the Election Commission of NCT of Delhi has evolved
the correct formula/manner of allotment of seats for Scheduled Castes and
for women, the same has not been uniformly implemented. This has been
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illustrated by way of the following example. Assuming that seats have
been correctly allotted up to and including ward No. 55 -- Shalimar Bagh
(North), it has been pointed out that this seat having been allocated for
woman under the General Category, ward No. 58 – Paschim Vihar (North)
ought to have been reserved for women, being the third seat thereafter in
the General Category. However, what has been done is that instead of
reserving ward No 58 – Paschim Vihar (North), the State Election
Commission has reserved Ward No 57 – Paschim Vihar (South) for women
when it is only the second Constituency after Ward No 55 – Shalimar
Bagh (South). By the same logic Ward No 59 - Rani Bagh ought not to
have been reserved for women.
36. The learned counsel appearing for the Election Commission of
NCT of Delhi could not give an answer to this. I have also examined this
aspect minutely and I find that the contention raised on behalf of the
petitioners has to be sustained. Indicating a particular manner for
allotment of seats for reserved candidates is one thing and its application is
another thing. While I have not found any fault with the formula sought to
be adopted by the Election Commission of NCT of Delhi, I find that the
formula has not been uniformly applied. An instance of the non-
application of such a formula has been indicated above. That is not the
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only instance. A Chart has been filed on behalf of the petitioners
indicating numerous such discrepancies. In fact, in my view, even if one
seat is wrongly allotted, since other seats are to be allotted in series, the
entire allotment goes bad. It is not that there is any allegation of mala
fides in allocating the seats, but that by not allocating the seats on the basis
of an avowed formula gives rise to suspicion that a policy of pick and
choose could have been employed. In my view, this is a serious error and
cannot be permitted to be perpetrated.
Whether a mandatory requirement has been flouted inasmuch
as the Notification dated 17.02.2007 does not purport to be a
Notification under Section 5 (2) of the DMC Act?

37. It was contended on behalf of the petitioners that no
Notification under Section 5 (2) of the DMC Act has been issued. It was
submitted that the Notification dated 17.02.2007 has been issued in
exercise of powers conferred by Sub-Section (7) and (8) of Section 3 of the
DMC Act. It was contended that while the provisions of Section 3 speak
of the total number of seats, the number of seats to be reserved for
Scheduled Castes and the number of seats to be reserved for women,
Section 5 (2) deals with not only the number of wards and the extent of
each ward but also with the identification of the wards in which seats shall
be reserved for the Scheduled Castes, the identification of the wards in
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which seats shall be reserved for women and the manner in which such
seats shall be rotated. It was contended that unless the Notification under
Section 5 (2) is issued, there can be no identification of the reserved seats
and, therefore, this mandatory requirement has not been fulfilled.
Technically speaking, the Notification dated 17.02.2007 does not expressly
indicate that it is a Notification issued under Section 5 (2) of the DMC Act.
But, this would not come in the way for determining the question of
validity of the Notification. Whether the provisions of Section 5 (2) of the
DMC Act are expressly mentioned in the Notification itself, or not, does
not in any way, detract from the position that the Central Government and
its delegate, the Election Commission of NCT of Delhi, had the power
under Section 5 (2) of the DMC Act to identify the seats which were to be
reserved for Scheduled Castes and/or women. It is apparent that the
Notification of 17.02.2007 not only determined the number of seats to be
reserved for women belonging to the Scheduled Castes from amongst the
seats reserved
for Scheduled Castes as 16 and the number of seats for women (General)
from amongst unreserved seats as 76, it also allocated the same as per the
table indicated in the Notification itself. Therefore, although, the
Notification does not refer to the provisions of Section 5 (2) of the DMC
Act, it has clearly been issued in exercise of the powers thereunder. It is
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well settled that the mere non-mention of a provision of a Statute in the
Notification would not mean that the Notification is without jurisdiction
provided, of course, the power to issue such a Notification is vested in the
authority which issued the Notification. There is no doubt that the Election
Commission of NCT of Delhi has the power. The only grievance is that
the provisions of Section 5 (2) have not been mentioned in the impugned
Notification. This is not a serious or a fatal infirmity. The Notification
dated 17.02.2007 would have to be deemed to be a Notification also issued
in exercise of powers under Section 5 (2) of the DMC Act.
Conclusion
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 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 segment cannot be interfered with as it is
neither arbitrary nor discriminatory nor malafide. Even the criterion of
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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.
39. During the course of hearing, yesterday (i.e., 05.03.2007), the
learned counsel for the Election Commission of NCT of Delhi had
indicated that a fresh notification would be issued under section 3(6), (7)
and (8) and 5(2)(c) and (d) of the DMC Act and the manner of allotment of
seats for Scheduled Castes, women belonging to Scheduled Castes and
women (general) would also be specified. A draft of the proposed
notification was presented before the court. The manner of allotment of
seats has been indicated as under:-
a) Seats for the Scheduled Castes shall be arranged in the
descending order of the percentage of Scheduled Castes
population in each ward and shall be reserved in that
order. To ensure that the seats reserved for Scheduled
Castes are not concentrated and are equally spread, to
the extent possible, throughout the area under MCD
jurisdiction, not more than 2 wards in an Assembly
segment shall be reserved for the Scheduled Castes.

b) By the above arrangement, 15 Assembly Constituencies
will have 2 seats reserved for Scheduled Castes. The Ist
of these 2 seats in each such Assembly Constituency
will be reserved for women belonging to the Scheduled
th
Castes. The 16 seat reserved for women belonging to
the Scheduled Castes will be the Scheduled Caste seat
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falling in the last assembly having only one Scheduled
th
Castes. The 16 seat reserved for Scheduled Castes
women will, thus, be 245 Durga Puri.
rd
c) Every 3 seat from amongst the 226 unreserved seats
th
will be reserved for women (general). That way the 75
women seat would go to ward 271 - Karawal Nagar
(West). The remaining 76th seat will go to the last
remaining ward No. 272-Sonia Vihar.
I see no difficulty with allotment of seats in the proposed manner. Since,
the election to be held on 05.04.2007 is to be notified by 10.03.2007, it is
directed that the fresh proposed notification based on the above manner of
allotment of seats is issued immediately.
40. It is made clear that there is no necessity of rotating the
scheduled caste seats in the future terms, though, the Central Government
may do so. There is, however, a necessity that the seats reserved for
women under both the scheduled caste and general categories be rotated.
The manner of such rotation must be indicated the next term.
41. With these directions and observations these writ petitions stand
disposed of.

BADAR DURREZ AHMED
March 06, 2007 (JUDGE)
HJ/J.
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