1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1590 OF 2010 Santosh s/o Sudhakarrao Jejurkar, R/o-Aapulki, Lane No. C-6, Smashan Maruti Road, Sanjay Nagar, Aurangabad, Dist-Aurangabad. ...PETITIONER. VERSUS 1) The State Election Commission, Through its Chief Election Commissioner, Administrative Building, Opposite to Mantralaya, Mumbai-32 2) Aurangabad Municipal Corporation, Aurangabad, through its Commissioner, 3) Neel s/o Kakasaheb Patil, R/o-Galli No.6, Smashan Maroti Road, Sanjay Nagar, Aurangabad, 4) The State of Maharashtra, Through its Secretary, Department of Urban Development, Mantralaya, Mumbai-32. ...RESPONDENTS. 2 ... Mr.B.L. Sagar Killarikar Advocate for the Petitioner. Mr.S.T. Shelke, Advocate for the Respondent No.1. Mr. Rajendra Deshmukh Advocate for the Respondent No.2. Mr. V.D. Godbharale, A.G.P. for the Respondent No.4. ... CORAM: A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 25TH FEBRUARY, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. By this Petition under Article 226 of the Constitution of India, the Petitioner has challenged the Notification issued by the Respondent No.1 dated 2nd February, 2010, in particular changes caused in boundaries of Ward No.54- Sanjay Nagar. 3. There was one more Petition filed before this 3 Court being Writ Petition No.1168 of 2010, which has been disposed of by us today by separate order. In that Petition, two points were urged before us and we have rejected both the contentions. In addition, in the present case the Petitioner, through counsel, argued two points. Firstly, that Ward No.54 has been redrawn by taking into account extraneous factors. In that, the Appropriate Authority was influenced by the contents of the communication dated 5th January, 2010 Exhibit I at Page 58 of the Paper Book. The emphasize in the said communication was about the predominant population of persons belonging to particular community. 4. In the first place, this communication is representation made by the Respondent No.3 to the Deputy Commissioner, Administration. It is not possible to assume that the Respondent No.1 has redrawn Ward No.54 purely on account of such consideration. The Notification which is impugned before us, does not reflect that position. On the 4 contrary, as per the final Notification, which is impugned in this Petition, the average population in Ward No.54 is around 8735 as against the average population of 8656 shown in the draft Notification. The increase of average population in the final Notification, in any case, does not exceed the average population of 8896, which figure is deduced on the basis of the latest census finally published, which pertains to year 2001. In our order passed in the companion Writ Petition No.1168 of 2010, we have taken the view that since no census report was published after 2001, the Commission had no option but to take the said census finally published in 2001, into account while drawing the boundaries of the Wards as postulated by Section 5 (3) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act of 1949"). The meaning of expression "latest census figures" has been spelt out in the explanation below Section 5(3) of the Act of 1949. In other words, in the present case, to bring Ward No.54 within 5 the permissible limit of 8896 average population, the boundaries have been redrawn. It is not possible for this Court to doubt the decision of the Appropriate Authority on some assumptions put forth by the Petitioner. On the other hand, it will have to be presumed that the decision reflected in the final Notification in relation to Ward No.54 has been taken in normal course of business and is a bona fide one. Besides, it is noticed that the limits of Ward No.54 have been redrawn on the basis of the objections received by the Commission. We do not find any merits in the first grievance of the Petitioner. 5. Same or similar argument is advanced in the form of second point. The grievance is that although the final Notification dated 2nd February, 2010 states that the average population of Ward No.54 is 8735, however, that is a false and incorrect number stated by the Commission. According to the Petitioner, the Petitioner has been able to track at least names of 1436 voters 6 from Ward No.54, whose names are not found in the list published along with the impugned notification. If those voters are added to the final list prepared by the Commission, the population of Ward No.54 would rise above 10,000, which would be far in excess of the maximum limit permissible as per the guidelines issued by the Commission, i.e. up to 10% plus or minus than the average population ratio. In other words, since the average population ratio is 8896 as per the latest census of 2001, the Appropriate Authority could not have exceeded the population beyond 9785 being 10% in excess of the average population. 6. This argument has been, in our opinion, rightly countered by the Respondents. In the first place, it is submitted that the Commission has to draw/ redraw boundaries of the Ward on the basis of the latest census finally published. In the present case, the latest census finally published was of 2001. As per that census, the average 7 population ratio comes to 8896 persons and as per the final Notification dated 2nd February, 2010, the population of Ward No.54 is 8735, which is within the permissible limits. 7. It is submitted that the election roll will, however, be prepared as per Section 7 A of the Act of 1949, which reads thus: "7 A. The Assembly roll for the time being in force, on such date as the State Election Commissioner may, by general or special order notify, shall be divided by the State Election Commissioner into different sections corresponding to the different wards in the City; and a printed copy each section of the roll so divided and authenticated by the State Election Commissioner or an officer authorised by him, shall be the ward roll for each ward." 8 8. The fact that the names of certain voters who were included in the Assembly roll are not found in the final Notification, would not preclude them from getting their names included by applying to the Commission in that behalf. That process is available and can be invoked by the concerned persons and it cannot be the basis to question the decision regarding drawing/ redrawing of Wards, in particular Ward No.54. The fact that the number of voters would increase beyond the average population and the outer limit of 10%, cannot be the basis to interfere with the impugned Notification dated 2nd February, 2010. For, it is not as if it is impermissible to go beyond the 10% margin, as the guideline itself recognizes that in that case the Commission would record reasons therefor. In any case what is relevant to note is that Ward No.54 has been drawn strictly on the basis of the latest census of 2001. As per that census, the population figure of Ward No.54 is arrived at 8735. Hence there is no substance in the above stated contention. 9 9. It was argued that the Respondents have not filed their response to the allegations made in Paragraph 21 and 22. We do appreciate this submission, but we cannot overlook the background in which we were called upon to decide this Petition on urgent basis. The impugned Notification was passed on 2nd February, 2010; whereas the present Petition was filed only on 22nd February, 2010 and was produced before the Court, when it was ordered to be listed on 24th February, 2010 along with companion matters. The counsel for the Respondents submitted that after service of the copy of the Petition on him, he hardly had any time for preparing reply affidavit. The Respondents have therefore proceeded on denial. Besides, we have still not issued formal notice to the Respondents so as to expect the Respondents to file reply affidavit. Notably, it is the Petitioner who was keen that order be passed immediately on this Petition apprehending that the Notification was likely to be issued and 10 once the election process commenced, there would be bar to entertain this Writ Petition. It is in this back drop we proceeded to hear the matter and took assistance of the counsel for the Respondents, on the basis of the record made available to him by the officers who were present in the Court. 10. In our opinion, there is no merit in this Petition as well. The same is therefore dismissed with liberty to the Petitioner and/or the persons named in the list at pages 64 to 117 or similarly placed persons, to pursue such remedies as may be available in law, for inclusion of their names in the Municipal Council voters list. That claim will be considered on its own merits. Ordered accordingly. [S.S. SHINDE, J.] [A.M. KHANWILKAR, J.] asb/FEB10/wp1590.10