ORDER
1. These two writ petitions have been filed by way of public interest litigation questioning the validity of [SECTION] of the [ACT] (in short "the Act"), as also the legality of the Government Order dated 26-2-2001, published in the Gazette of 1-3-2001 (Annexure-A2) setting out the general principles which are to be kept in view in rotation of reserved seats among different categories of reserved classes in various wards as required under [SECTION]T of the [ACT].
2. After the insertion of [SECTION] (the Municipalities) in the [ACT], which came into force on 1-6-1993, the Karnataka State Legislature substituted [SECTION] of the Act to bring it in conformity with the constitutional amendments. [SECTION] of the Act which provides for reservation of seats for SC and ST whereas Sub-section (3) of the said section provides for reservation of seats for persons belonging to the Backward Classes.
2-A. The above provisions read as under:
"7. [ACT] of the Corporation. (1)
(2) Seats shall be reserved in a Corporation.-
(a) for the Scheduled Castes; and
(b) for the Scheduled Tribes;
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 the Corporation as the population of the Scheduled Castes in the city or of the Scheduled Tribes in the city bears to the total population of the city.
(3) Such number of seats which shall as nearly as may be, one-third of the total number of seats to be filled by direct election in a Corporation shall be reserved for persons belonging to the Backward Classes:
Provided that out of the seats reserved under this sub-section, eighty per cent of the total number of such seats shall be reserved for the persons falling under Category "A" and the remaining twenty per cent of the seats shall be reserved for the persons falling under Category "B":
Provided further that if no person falling under Category "A" is available, the seats reserved for the category shall also be filled by the persons falling under Category "B" and vice versa".
3. [SECTION]T of the [ACT] provides for reservation of seats in Municipalities which includes Corporations, which reads thus:
"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 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 [SECTION].
(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".
A bare reading of different clauses of [SECTION]T of the [ACT] shows that under Clause (1) thereof the reservation for Scheduled Castes and Scheduled Tribes in every Municipality is required to be made as nearly in proportion of the total number of seats to be filled by direct election in that Municipality as the population of Scheduled Castes or the Scheduled Tribes in the Municipal area bears to the total population of that area. It further provides that such seats are to be allotted by rotation to different constituencies in the Municipality. Clauses (2) and (3) of the said Article mandates about reservation of seats for women which shall not be less than one-third of the total number of seats on the basis provided therein. Clause (6) merely declares that the Legislature of the State shall not be prevented from making reservations for Backward Class. The [ACT] by itself has neither provided for the basis for making of such reservations nor it has put any maximum or minimum ceiling in respect thereof.
4. Keeping in view the above enabling provisions as also the legislative entry 5 of the [SECTION] to the [ACT], the State Legislature has provided in [SECTION] that such number of seats which are as nearly as may be 1/3rd of the seats to be filled by the direct election in a Corporation shall be reserved for persons belonging to the Backward Classes. This provision providing reservation for Backward Classes has been questioned before us on two material grounds namely, (i) there was no rational basis for providing 1/3rd reservations to Backward Classes for all the Corporations; and (ii) such a reservation could have been made only on the basis of the facts and figures collected regarding the population of the Backward Classes in the respective Corporation areas.
5. In respect of the second ground Sri [ENTITY], learned Senior Counsel appearing for the petitioners has placed reliance on the judgment of the Supreme Court in the case of [PRECEDENT]., . He has brought to our notice paragraph 33 of the judgment, wherein it has been held that:
" The census of 1991 has not enumerated the number of persons belonging to Backward Classes. Therefore, in order to reserve seats for citizens belonging to Backward Classes, their number will have to be found out. [SECTION]T has impliedly empowered the State Government to ascertain the Backward Classes and the number of people belonging to such classes. Otherwise, the provisions of [SECTION]T will become otiose and meaningless. Merely because, such an enumeration of people belonging to Backward Classes was made, does not mean that the figures enumerated by the last census were discarded. The latest available census figures had to be the basis for delimitation of the constituencies, preparation of electoral rolls and also for reservation of seats for Scheduled Castes, Scheduled Tribes and women. But census figures are not available for persons belonging to Backward Classes. The next census will be in the year 2001. There is no way to reserve seats for Backward Classes in the meantime except by making a survey of the number of persons belonging to such classes for the purpose of giving them assured representation in the Municipal bodies. To do this exercise is not to do away with the last available census figures but to find out what was not to be found by the last census. Had such counting been done in the census, then it would not have been open to the State Government to embark upon a survey of its own. The State Government here had only two choices. It could say that there will be no reservation for people belonging to Backward Classes because, the census figures of such people are not available or it could make a survey and count the number of people belonging to the Backward Classes and reserve seats for them in the Municipal bodies. The State Government has taken the latter course. This is in consonance with the provisions of [SECTION] Therefore, the survey made by the State Government for finding out the number of persons belonging to Backward Classes was not in any way contrary to or in conflict with any of the provisions of the [ACT]".
6. In our opinion the above judgment of the Supreme Court can have no relevance in the context of the statutory provisions contained in the [ACT], because the above Supreme Court judgment was rendered in the context of [SECTION] of the [ACT] which is not part materia with the corresponding provisions contained in the [ACT].
6-A. [SECTION] of the [ACT] which deals with reservation of seats in the Corporations in that State reads as under:
"7. Reservation of seats. (1) In every Corporation, seats shall be reserved for the Scheduled Castes, the Scheduled Tribes and the Backward Classes and the number of seats so reserved shall as nearly as may be, bear the same proportion to the total number of seats to be filled by direct election in the Corporation, as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area or of the Backward Classes in the Municipal area bears to the total population of such area and such seats may be allotted by rotation to different wards in a Corporation in such order as may be prescribed by rules".
7. Admittedly, under [SECTION]T the reservation in relation to the Scheduled Castes and Scheduled Tribes had been made dependent on the proportion of population in the Municipal area of such Castes and Tribes, but so far as the Backward Classes are concerned no guideline has been prescribed and it was left to the discretion of the State Legislature to work out the modality for providing the reservation for Backward Classes. Therefore, it was well-within the competence of the State Legislature to provide for the percentage of the seats which were to be reserved for Backward Classes. But, certainly there had to be a rational basis for adopting of such percentage. It had been admitted at the Bar that in the State of Karnataka, in almost all the municipal areas including the Corporations, the population of Backward Classes are in the nearhood of about 70% of the total population. In the said view of the matter providing for 1/3rd reservation for the Backward Classes cannot be said to be arbitrary or without any basis or devoid of rationality.
8. The next submission advanced by Sri [ENTITY] is that if the total reservations made in the Municipal Corporation for all the classes are taken together, it will be more than 50% and therefore as held by the Supreme Court in the case of [ENTITY] v. Union of India and Ors., providing of such an excessive reservation would be constitutionally invalid.
9. In our opinion this submission also cannot be accepted because the upper ceiling of 50% reservation as fixed in [ENTITY]'s case, supra, was declared in the context of public services taken as a whole and not in relation to elections of democratic institutions like local bodies. This distinction has been clearly indicated by the Supreme Court itself in paragraph 94-A of its judgment wherein it has been observed that, the theory of proportionate representation based on population of Backward Classes to the total population is relevant. Their Lordships have drawn a distinction between the concepts of adequate representation as applicable to the public services envisaged under [SECTION] of the [ACT] and proportionate representation. Certainly, the concept of proportionate representation has to be a relevant criteria and a rational basis in a democratic society where all sections of the citizens must have a chance of reasonable representation in their governance. Therefore, the second ground of challenge as well is to be rejected.
10. Moreover the learned Advocate General by relying on the judgment of the Supreme Court in the case of [PRECEDENT] has submitted that it is a well-accepted principle of construction that statute made by a competent Legislature has to be presumed to be constitutionally valid, unless it is shown to be otherwise on the basis of acceptable materials and cogent grounds. In support of his submission he relied on paragraph 7 of the judgment, which reads thus:
"Now while considering the constitutional validity of a statute said to be violative of [SECTION], it is necessary to bear in mind certain well-established principles which have been evolved by the Courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the Legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation".
11. In the present case admittedly no material has been placed by the petitioner to show that the fixation of 1/3rd of the seats as reserved for Backward Classes was in any way irrational or arbitrary and therefore constitutionally invalid. The petitioners have thus failed to discharge their onus in this regard. For this reason as well, the challenge to [SECTION] of the Act has to fail.
12. So far as the guidelines at Annexure-A2 are concerned, in our opinion, in these public interest litigations, the validity thereof need not be examined in detail because the notifications issued pursuant thereto have been very well carried out as per the constitutional mandate by rotation of the reserved seats amongst the concerned wards. The petitioners have not questioned the bona fide of the Government in issuing the notifications constituting the wards and allotting the reserved seats to such wards. Therefore, for the purpose of present election, the challenge to the validity of the guidelines at Annexure-A2 is only academic and accordingly we declare to examine the said issue.
13. Writ petitions are accordingly dismissed. Parties to bear their own costs.