IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12262 of 2007 SMT.MADHURI DEVI Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: - Mr. Rajendra Narain, Adv. For the State Election Commissioner: - Mr. R.S. Pradhan, Sr. Adv. Mr. Rajeev Lochan, Adv. For the State: - Mr. Shivjee Prasad, Adv. (G.P. II) ----------------------- 3. 17.9.2008 Heard learned counsel for the petitioner and learned counsels for the State Election Commission and the State. The petitioner prays for quashing of the notification issued under Letter No. –Ni 50- 180/2007-02 dated 4.6.2007 (Annexure- 3) by the State Election Commission Bihar by which the earlier notification no. 1 dated 25.5.2007 has been altered in connection with posts reserved for Scheduled Caste Women as Chief Councillors, Nagar Panchayats. The petitioner is a successful candidate in elections to the Nagar Panchayat, Jhajha on the post of Ward Councillor which was reserved for Scheduled Caste (Women). The same was the only post reserved for Scheduled Caste (Women) although there were two other posts reserved for Scheduled Caste candidates. By a notification dated 11.4.2007 various posts in Nagar Panchayat, Jhajha reserved for different categories were enumerated in which there was only one post reserved for Scheduled Caste Women. The said policy contained in letter dated 11.4.2007 was further elaborated fixing the specific wards for different categories of candidates, general or reserved. Thereafter, on 1.6.2007 the Sub-divisional Officer, Jamui as the Election Officer - 2 - of Nagar Panchayat, Jhajha issued a notice for election to the post of Chief Councillor and Deputy Chief Councillor in which the date of meeting for the election was fixed as 1.6.2007 and it was clearly stated that the post of Chief Councillor is reserved for Scheduled Caste (Women). Subsequently by the impugned letter dated 4.6.2007 (Annexure- 3) issued by the State Election Commission, Bihar it was directed that the earlier reservation with respect to Chief Councillors in Nagar Panchayats of the State was being amended and with respect to Nagar Panchayat, Jhajha the post of Chief Councillor reserved for Scheduled Caste (Women) was changed to reservation for Scheduled Caste only. The petitioner is aggrieved with the said change and has challenged the same in the writ petition. Learned counsel for the petitioner submits that from the very inception on 11.4.2007 when the reservation of various posts in the Nagar Panchayat, Jhajha was fixed by the Election Commission, it was aware that there was only one post reserved for Scheduled Caste women yet it had subsequently fixed the same for Scheduled Caste women. It was only after the election of the petitioner in the end of May 2007 that the change was made deliberately to keep the petitioner out of the post of Chief Councillor. It is submitted that the same has been done on account of political pressure because as late as on 1.6.2007 when the notice for election to the post of Chief Councillor was issued no change had been contemplated and the same had been issued knowing well the fact that the petitioner was the only woman Scheduled Caste candidate in the said Nagar Panchayat. Learned - 3 - counsel contends that nothing transpired from 1.6.2007 to 4.6.2007 to change the position and thus the reason that is assigned in the impugned notification dated 4.6.2007 is not something new but known to the authorities of the Election Commission from before and the same therefore cannot stand the test of scrutiny and ought to be quashed as arbitrary and unreasonable. Learned counsel for the Election Commission, on the other hand, submits that the change has been made in order to ensure that the provisions of the Bihar Municipal Act, 2007 can be given effect to after the election to the post of Chief Councillor of Jhajha Nagar Panchayat and accordingly on the basis of the results of the elections of the Nagar panchayats, the changes have been proposed in the notification dated 4.6.2007. It is submitted that earlier the post had been reserved for Scheduled Caste Women keeping in view the percentage of Scheduled Caste in the area in question at that time. When the same was fixed it was not known to the Commission as to what would be the final outcome of the elections to the urban local bodies in general and the Nagar Panchayats in particular and although only one post in Jhajha Nagar Panchayat has been reserved for the Scheduled Caste women but there were two other posts reserved for Scheduled Caste candidates and thus it was distinctly possible that another woman belonging to Scheduled Caste category may be elected from those two posts reserved for Scheduled Castes and even otherwise there could have been another Scheduled Caste woman elected to the post of Ward Councillor from the unreserved - 4 - constituencies also. It was only after the elections to the Nagar Panchayats of the entire State became known that it was found that no other Scheduled Caste woman had got elected in the Nagar Panchayat, Jhajha as Ward Councillor and also in two other Nagar Panchayats, namely, Barbigha and Daudnagar. In the said circumstances, the Election Commission in order to ensure that the provisions of the Bihar Municipal Act, 2007 are given effect to during the course of functioning of the urban local bodies, including the provisions regarding no-confidence motion against the Chief Councillor or her removal otherwise that the changes were announced with respect not only to Jhajha Nagar Panchayat but the two other said Nagar Panchayats making the said post reserved for all Scheduled Caste candidates and in their place reserving the post of Chief Councillor for Scheduled Caste women in two other Nagar Panchayat of Sonpur and Dighwara, where earlier the same had been reserved for all Scheduled Caste candidates. It is submitted that the said changes have been made on a rational basis and in order to ensure that the provisions of the Bihar Municipal Act are not made otiose in the actual functioning of the Nagar Panchayats and it is not only the Nagar Panchayat of Jhajha which has been singled out without any rhyme and reason for the purpose of making changes in the reserved category with respect to the post of Chief Councillor. On a consideration of the submissions of learned counsels for the parties, this Court is unable to accept the contention of learned counsel for the petitioner that the changes have been made due to - 5 - political considerations or out of any personal mala fide towards the petitioner. In any case mala fide has not only to be alleged but also to be successfully proved. For the purpose of alleging mala fide the persons concerned have to be identified and made parties in their individual names and thereafter the allegation against them have to be proved on the basis of specific facts. There is nothing on the record to show that the said changes were made due to any personal animus of any particular person in authority against the petitioner. So far as the contention that the impugned notification dated 4.6.2007 is arbitrary and unreasonable is concerned, this Court finds sufficient reasons having been assigned in the counter affidavit of the State Election Commission as have been argued by learned counsel for the Commission. This Court finds that the changes have been made on reasonable grounds so that a situation does not arise that the provisions of the Bihar Municipal Act, 2007 cannot be given effect to in a situation where the majority of the elected members or even all the other elected members seek to remove the Chief Councillor by a vote of no confidence, apart from creating a monopoly on the post concerned in favour of the sole elected person of that category, that is, the petitioner. As a matter of fact, the reservation of a post in a manner so as to create a situation that the reserved post will automatically go to a particular ward councillor may itself be liable to be challenged on the ground of being unreasonable and arbitrary. Thus, in the light of the aforesaid discussions, this Court does not find any merit in the writ application and it is accordingly - 6 - dismissed. This Court however is constrained to observe that when the Election Commission had initially announced the reservations on the posts of Chief Councillors of the Nagar Panchayats it ought to have clarified in the notification itself that the said reservation was tentative and would be open to change on the basis of actual results which come out in the election so as to not result in a situation where the post of Chief Councillor would automatically get reserved for a single person who can thereafter get elected uncontested on the said post. Let it ensure the same in future elections to the urban local bodies or the Panchayats, as the case may be, so as to prevent any such allegations being made as have been made in the present matter. P. Kumar A.F.R. (Ramesh Kumar Datta, J.)