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 WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.1 of 55 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 WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.2 of 55 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 14.12.19931, 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. WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.3 of 55 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. WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.4 of 55 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 these were reserved for members of the Scheduled Castes2. 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. WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.5 of 55 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, this notification ran into problems and was withdrawn3. 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. WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.6 of 55 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:- WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.7 of 55 "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 WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.8 of 55 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. WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.9 of 55 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; WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.10 of 55 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 :- No. & Name of Ward Category No. & Name of Ward Category 1- Narela G 16- Jahangir Puri-I SC 2- Bankner G 17 - Samaypur Badli G 3- Alipur W 18 - Libas Pur W 4- Bakhtawar Pur G 19- Bhalswa G 5- Bhalswa Jahangir Pur SC 20 - Jahangir Puri-II G 6- Mukund Pur G 21- Rohini W 7- Burari W 22 - Rithala G 8- Jharoda G 23 - Budh Vihar G 9- Malka Ganj SC 24- Vijay Vihar W 10 -Timar Pur G 25- Pooth Kalan SC- W 11- Mukherjee Nagar W 26- Sahibabad Dault Pur SC 12 - G.T.B.Nagar G 27- Begumpur G 13 - Dhir Pur G 28- Bawana G 14 - Adarsh Nagar W 29 -Karala W 15 - Sarai Pipal Thala G 30- Mundaka G 31- Nangloi Jat West SC 52 - Naharpur W 32- Nilothi G 53 - Pitampura South G 33- Pratap Vihar W 54 - Pitampura North G 34- Nithari G 55 - Shalimar Bagh North W 35- Kirari Suleman Nagar SC 56 - Shalimar Bagh South G 36- Prem Nagar G 57 - Paschim Vihar South W 37 - Sultanpuri East SC- W 58 - Paschim Vihar North G 38 - Mangol Puri North SC 59 - Rani Bagh W 39 - Sultanpur Majra G 60 - Saraswati Vihar G 40- Sultanpuri South G 61 - Tri Nagar W 41 -Guru Harkishan Nagar W 62 - Rampura G WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.11 of 55 No. & Name of Ward Category No. & Name of Ward Category 42- Peragharhi SC 63 - Kohat Enclave G 43 - Nangloi East G 64 - Shakur Pur SC 44- Quammruddin Nagar G 65 - Nimri Colony SC- W 45- Rohini South G 66 - Sawan Park SC 46- Mangolpuri East SC- W 67 - Wazirpur G 47- Mangolpuri G 68 - Ashok Vihar G 48 -Mangolpuri West SC 69 - Kamla Nagar W 49 - Rohini North W 70 - Rana Pratap Bagh G 50- Rohini Central G 71 - Sangam Park SC 51 - Rohini East G 72 - Model Town G 73 - Shastri Nagar W 93 - Baljit Nagar SC- W 74- Inder Lok Colony SC 94 - West Patel Nagar G 75 - Kishan Ganj G 95 - East Patel Nagar SC 76 - Deputy Ganj G 96 - New Ranjit Nagar G 77 - Kashmere Gate W 97 - Kirti Nagar W 78 - Majnu Ka Tilla SC 98 - Man Sarover Garden G 79 - Jama Masjid G 99 - Moti Nagar W 80 - Chandni Chowk G 100 - Karampura G 81 - Minto Road W 101- Raja Garden G 82 - Kucha Pandit SC 102 - Raghubir Nagar SC- W 83 - Bazar Sita Ram G 103 - Punjabi Bagh G 84 - Turkman Gate G 104 - Madipur SC 85 - Idgah Road SC- W 105 - Rajouri Garden G 86 - Ballimaran G 106 -Tagore Garden W 87 - Ram Nagar SC 107 - Vishnu Garden G 88 - Qasabpura G 108 - Khyala W 89 - Paharganj G 109 - Janakpuri North G 90 - Model Basti SC- W 110 - Nangal Raya W 91 - Karol Bagh G 111 - Hari Nagar G 92 - Dev Nagar SC 112 - Subhash Nagar W 113 - Mahavir Nagar G 134 - Nangli Sakravati W 114 - Tilak Nagar W 135 - Kakraula G 115 - Major Bhupinder Singh Nagar G 136 - Matiala W 116 - Vikaspuri East W 137 - Roshanpura G 117 - Janak Puri West G 138 - Najafgarh G 118 - Janak Puri South W 139 - Dichaon Kalan W 119 - Milap Nagar G 140 - Khera G 120 - Sitapuri W 141 - Bijwasan W WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.12 of 55 No. & Name of Ward Category No. & Name of Ward Category 121 - Kunwar Singh Nagar G 142 - Raj Nagar G 122 - Hastsal W 143 - Kapashera G 123 - Vikas Puri G 144 - Mahipalpur W 124 - Vikas Nagar W 145 - Palam G 125 - Mohan Garden G 146 - Sadh Nagar G 126 - Nawada W 147- Mahavir Enclave W 127 - Uttam Nagar G 148 - Madhu Vihar G 128 - Bindapur W 149 - Rajinder Nagar G 129 - Dabri G 150 - Pusa SC- W 130 - Manglapuri W 151 - Inderpuri SC 131 - Sagarpur G 152 - Naraina G 132 - Sagarpur West W 153 - Daryaganj W 133 - Chhawla G 154 - Nizamuddin G 155 - Lajpat Nagar G 175 - Aya Nagar W 156 - Bhogal SC 176 - Bhati G 157 - Kasturba Nagar W 177 - Sangam Vihar G 158 - Kotla Mubarak Pur G 178 - Deoli G 159 - Adnrewsganj G 179 - Tigri SC- W 160 - Amar Colony W 180 - Dakshin Puri Ext. SC 161 - Malviya Nagar G 181 - Khanpur G 162 - Village Hauz Rani G 182 - Ambedkar Nagar SC- W 163 - Safdarjang Enclave W 183 - Madangir SC 164 - Hauz Khas G 184 - Pushp Vihar G 165 - Vasant Vihar G 185 - Tughlakabad Extn. W 166 - Munirika W 186 - Sangam Vihar West G 167 - R.K. Puram G 187 - Sangam Vihar Central W 168 - Nanak Pura G 188 - Sangam Vihar East G 169 - Lado Sarai W 189 - Chiragh Delhi W 170 - Mehrauli G 190 - Chitranjan Park G 171 - Vasant Kunj SC 191 - Shahpur Jat W 172 - Kishangarh G 192 - Greater Kailash I G 173 - Said-ul-Ajaib W 193 - Sri Niwaspuri G 174 - Chhatarpur G 194 - East of Kailash W 195 - Govind Puri G 216 - Gharoli G 196 - Kalkaji G 217 - Vinod Nagar W 197 - Tughlakabad W 218 - Mandawali G 198 - Pul Pehlad G 219 - Mayur Vihar Phase -II G 199 - Tekhand G 220 - Patpar Ganj W WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.13 of 55 No. & Name of Ward Category No. & Name of Ward Category 200 -Harkesh Nagar SC 221 - Kishan Kunj G 201 - Jaitpur W 222 - Laxmi Nagar G 202 - Meetheypur G 223 - Shakarpur W 203 - Badarpur G 224 - Pandav Nagar G 204 - Molarband W 225 - Anand Vihar G 205 - Zakir Nagar G 226 - Vishwash Nagar SC 206 - Okhla G 227 - I.P. Extention W 207 - Madanpur Khadar W 228 - Preet Vihar G 208 - Sarita Vihar G 229 - Krishna Nagar G 209 - Mayur Vihar Phase-I G 230 - Geeta Colony W 210 - Dallopura SC- W 231 - Ghondli G 211 - Trilok Puri SC 232 - Anarkali G 212 - New Ashok Nagar G 233 - Dharam Pura W 213 - Kalyan Puri SC- W 234 - Gandhi Nagar G 214 - Khichripur G 235 - Azad Nagar G 215 - Kondli SC 236 - Raghubar Pura W 237 - Shahdara G 255 - Ghonda W 238 - Jhilmil G 256 - Yamuna Vihar G 239 - Vivek Vihar W 257 - Subhash Mohalla G 240 - Dilshad Colony G 258 - Kardampuri W 241 - Dilshad Garden G 259 - Janta Colony G 242 - New Seema Puri G 260 - Babar pur G 243 - Nand Nagri SC- W 261 - Jiwanpur G 244 - Sunder Nagari SC 262 - Gokalpur SC- W 245 - Durga Puri SC-W 263 - Saboli G 246 - Ashok Nagar W 264 - Harsh Vihar SC 247 - Ram Nagar G 265 - Shiv Vihar G 248 - Welcome Colony G 266 - Karawal Nagar East W 249 - Chauhan Bangar W 267 - Nehru Vihar G 250 - Zaffrabad G 268 - Mustafabad W 251 - New Usmanpur G 269 - Khajoori Khas G 252 - Mauj Pur W 270 - Tukhmir Pur W 253 - Bhajanpura G 271 - Karawal Nagar West G 254 - Brahampuri G 272 - Sonia Vihar W 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 ) WP(C)1331/07,1336/07,1399/07,1400/07,1401/07,1477/07 & 1513/07 Page No.14 of 55 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