1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1168 OF 2010 Deelip L. Khivesara, Age:43 years, Occ: Advocate, R/o. Anand, Pandariba-Anguribag Road, Aurangabad. .. Petitioner Versus 1. State of Maharashtra, Through it's Secretary, Ministry of Urban Development, Mantralaya, Mumbai-32. 2. The Election Commission of Maharashtra, Through its Chief Election Commissioner. 3. The Municipal Corporation, Aurangabad, Through its Commissioner, Aurangabad. .. Respondents ... Mr. S.V. Gangapurwala Advocate i/b. Mr. A.P. Bhandari, Advocate for petitioner. Mr .N.B. Khandare, Government Pleader for respondent No.1. Mr. S.T. Shelke Advocate for Respondent No.2. Mr. Rajendra Deshmukh Advocate for Respondent No.3. ... 2 CORAM : A.M. KHANWILKAR & S.S. SHINDE, JJ. DATE : 25TH FEBRUARY, 2010 PER COURT : Heard Counsel for the parties. 2. By this petition under Article 226 of the Constitution of India, the petitioner is challenging the impugned notification issued by the Election Commission of Maharashtra dated 02-02-2010 and prays that the respondents be directed to hold the election as per the boundaries specified in the draft notification dated 23-12-2009 and to restrain the respondents from issuing notification of Election Programme on the basis of the impugned notification dated 02-02-2010. 3. Essentially two points have been argued 3 before us. The first grievance of the petitioner is that the final notification is in contravention of the requirement of Section 5(3) of the Bombay Provincial Municipal Corporations Act, 1949. The same reads thus : "5(3) The State Election Commissioner shall, from time to time, by notification in the Official Gazette, specify for each City the number and boundaries of the wards into which such City shall be divided for the purpose of the ward election of Councillors each ward shall elect not less than three and not more than five Councillors. In all wards as far as practicable, the number of persons per seat according to the latest census figures shall approximately be the same. Explanation:- For the purpose of this Act, the expression "Latest census figures" obtaining in sub- section (3) shall mean (a) the figures of the latest census finally published and pending publication of final figures of the latest census shall mean the provisional figures publishes of such census; and 4 (b) where the relevant final or provisional figures of the latest census are not available; the final relevant figures of the census immediately preceding the latest census. Provided that no notification issued under sub- section (3) whether before or after the commencement of the Maharashtra Municipal Corporation, Municipal Councils, Nagar Panchayats and Industrial Township (Third Amendment) Act, 1995, shall have effect except for the general election held next after the date thereof and for subsequent elections. Provided also that, before any notification is issued under sub-section (3), a draft thereof shall be published in the Official Gazette, and in such other manner as in the opinion of the State Election Commissioner is best calculated to bring the information to the notice of all persons likely to be affected thereby, together, with a notice specifying the date on or before which any objections or suggestions will be received and the date after which the draft will be taken into consideration. Explanation II. In this sub-section and sub-section 5 (4), "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Maharashtra under Article 342 of the Constitution of India". 4. On plain language of the above provision, the State Election Commissioner is expected to divide Wards which should be of compact areas and number of persons in each Ward according to the latest census figures shall approximately be the same. The expression latest census figures would mean the figures of the latest census finally published. During the course of the argument, Counsel for the petitioner has fairly accepted that the petitioner has no grievance with regard to the division of Wards not being of compact areas as such. The only grievance is that, there is disparity in the population or number of persons in the three contiguous Wards with which we are concerned i.e. Ward Nos. 33, 38 and 39. 6 5. The petitioner is covered under Ward No. 33, as per the impugned notification dated 02-02-2010. Prior thereto, the petitioner was covered under Ward No. 39. As per the impugned notification dated 02-02-2010 the Ward No.33 would consist of 9723, whereas the Ward NO. 38 would consist of 8067 and the Ward NO. 39 would consist of 9446 population respectively. Relying on this figures, it was argued that the number of persons are not approximately the same in the concerned Wards, for which reason, the impugned notification was in the teeth of Section 5(3) of the Act. As is noticed earlier, the explanation under sub section 3 gives insight into the meaning of expression "latest census figures". It means, the figures of latest census finally published. In the present case, it is not in dispute that the latest census finally published was in the year 2001. In other words, no census report has been published since then. The Commission has drawn 7 Wards keeping in mind the said census of 2001. The average population as per the said census would work out to 8896. The question is whether the difference in the population in the three Wards as per the impugned notification dated 02-02-2010 can be sustained. 6. Our attention is invited by the Counsel for the Commission to the guidelines issued under order dated 03-05-2005. Clause-12 to 15 of the said guidelines are pressed into service to answer the controversy. English translation thereof reads thus : "12. The ward formation is based on population as per the definition given in Chapter IX-A of the Constitution of India. The population means the latest population of which relevant figures have been published. Therefore, only the data supplied by the census office (census wardwise and enumeration blockwise) can only be considered for ward formation. 13. After obtaining population data from census 8 office, the number of elected members in a Municipal Corporation, Municipal Council or Nagar Panchayat has to be fixed. After fixing their members, the total population has to be divided by the total number of elected members. The resultant population should be considered as ratio of population for 1 ward. 14. While forming the ward, population of each ward should be as nearly as possible to their ratio population. An exceptional circumstance of ward population may exceed or lowered by 10%. 15. In case a population of ward is beyond 10% variation, reason for the same should be mentioned." 7. As aforesaid, the average population as per the latest census of 2001 would be 8896. Allowing 10% margin thereon - plus or minus margin, the maximum average population would come to around 9785. Thus understood, the population ratio in none of the Constituencies in Ward Nos.33, 38 or 39 would exceed the maximum permissible population. If it is so, there is no substance in the grievance made by 9 the petitioner. It is noticed from the record that the authorised officer had to change the distribution or limits of the respective Wards and more particularly in respect of Ward Nos. 33, 39 and 38 in the context of the objection raised. Indeed, it would appear that the Ward No. 33 protrudes into redrawn Ward No.39. At the same time, it is noticed that the population of Ward No. 33 and 39 is approximately the same i.e. 9723 and 9446 respectively. Accordingly, the limits of Ward Nos. 33 and 39 in particular have been redrawn, keeping in mind the principle stated in Section 5(3) and the guidelines issued by respondent No.2 Commission. Accordingly, there is no substance in the first grievance. 8. The second grievance of the petitioner is that previously the petitioner was covered under Ward No. 39 which was reserved for Woman as General Category. Even in the draft notification dated 23-12-2009 the petitioner was covered under Ward No. 39. However, in the impugned 10 notification dated 02-02-2010 on account of realignment of the limits of Ward No. 33 and Ward No. 39 inter-se, the petitioner is now covered under Ward No. 33. However, now the Ward No. 33 has been reserved for Woman as General Category. It is contended that since the petitioner already suffered reservation whilst covered under Ward No. 39 previously, the same reservation cannot be introduced in redrawn Ward No. 33 under which the petitioner would be covered on account of impugned notification dated 02-02-2010. That is contrary to the Note No.2 of the draft notification dated 23-12-2009 which reads thus : "2. While finalizing the wards, if limits of any award are changed and due to which change in reservation becomes necessary then draw for reservation will be done again". 9. This grievance though attractive at the first blush, does not take the matter any further. Counsel for the Commission has invited 11 our attention to the order dated 10-07-2009 which is the guiding document for providing reservations. The relevant (translated) Paragraph Nos. 1 to 4 thereof reads thus : "1. The wards in Municipal Corporations, Municipal Councils or Nagar Panchayats shall be arranged in descending order of the percentage of population of Scheduled Castes or Scheduled Tribes, as the case may be. The Scheduled Castes and Scheduled Tribes shall be given reservation in the same percentage as their populations have to the total population of the city. In the first general election, the wards having the highest population of the Scheduled Castes or Scheduled Tribes will be reserved. In the subsequent elections, the wards for Scheduled Castes and Scheduled Tribes shall be reserved in descending order. E.g. In Municipal Corporation, 3 wards are reserved for Scheduled Castes and 2 wards are reserved for Scheduled Tribes. The reservation shall be fixed as under:- 12 Statement regarding reservation to Scheduled Castes. Sr . No Ward No. Total Populat ion S.C. Popula tion S.T. Popul ation Perce ntage of S.C. Popul ation Perce ntage of S.T. Popul ation Rese rvat ion 1 12 5519 2063 7 37.38 0.13 S.C. 2 46 4777 1692 293 35.42 6.13 S.C. 3 67 5191 990 142 19.07 2.74 S.C. 4 3 5431 977 79 17.99 1.45 5 47 5040 867 282 17.2 5.6 6 1 5247 818 143 15.59 2.73 In the first election, the first three wards shall be reserved for the Scheduled Castes. In the next election, wards at Srl. no.4 to 6 shall be reserved for Scheduled Castes. 2. However, if a ward can be reserved for both the Scheduled Castes and Scheduled Tribes, then the preference has to be given to the Scheduled Tribes. The reason behind is that the population of Scheduled Tribes in urban areas is far less as compared to the Scheduled Castes. 13 Statement regarding reservation to Scheduled Tribes Sr . No Ward No. Total Populati on S.C. Popul ation S.T. Popul ation Perce ntage of S.C. Popul ation Perce ntage of S.T. Popul ation Reser vatio n 1 9 5218 307 2309 5.88 44.25 S.T. 2 10 5591 122 1869 2.18 33.43 S.T. 3 31 5862 1221 1411 9.73 20.83 4 50 5008 637 590 12.72 11.78 In the first election, the first 2 wards shall be reserved for Scheduled Tribes and in the next election, the wards at srl.no.3 and 4 shall be reserved for Scheduled Tribes. 3. While fixing the reservation for Backward Class of Citizens (including women belonging to the Backward Class of Citizens and women), the wards which were reserved for these categories and the wards earmarked to Scheduled Castes and Scheduled Tribes have to be omitted. 4. However, if the population of ward has changed by more than 50%, then the wards has to be treated as 'new' even 14 though the name of the ward may not have changed. To ascertain the ward, the population of the ward has changed by more than 50%, population of enumeration blocks which have been omitted or which have been newly included has to be calculated and if that total is more than 50% of the total population of the ward, then it can be said that 50% population has changed. If that ward is reserved for Scheduled Castes or Scheduled Tribes, then the reservation for that ward need not be changed". 10. If Paragraph No. 4 were to be applied to the case on hand, it is noticed that the population of Ward No.33 has not been changed by more than 50% of the total population of the ward. If it is so, it cannot be assumed that there is change in the limits of the ward as such so as to invoke Note No.2 referred to above. It is a co-incidence that the petitioner is now covered under Ward No.33 and that ward has been reserved for Woman as General Category for the ensuing election. It is true that the petitioner cannot participate in the election from Ward No. 33 since it is reserved for Woman 15 as General Category although he has suffered the same reservation whilst he was covered under Ward No. 39 in the previous election. However, in absence of any express provision in the Act or Rules made by the Legislature, the petitioner is not entitled for any relief. It is well established position that right to participate in the election process is only a statutory right. Besides the petitioner, it is possible that other persons similarly placed as that of the petitioner, may be denied opportunity to participate in the ensuing election on account of reservation for Woman - but since the population of the Ward has not changed by more than 50% of the total population of the ward, the question of shifting reservation for Woman as General Category in relation to Ward No.33 which has been constituted under the impugned notification dated 02-02-2010 cannot be countenanced. 11. Taking overall view of the matter, in our 16 opinion, there is no substance in the two points canvassed before us. Hence this petition fails. The same is dismissed. ( S.S. SHINDE, J. ) ( A.M. KHANWILKAR, J.) sut/FEB10/wp1168.10