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1997(10) Supreme 234
SUPREME COURT OF INDIA
J.S. Verma, CJI., B.N. Kirpal, M. Jagannadha Rao, JJ.
Kasambhai F. Ghanchi -Appellant
versus
Chandubhai D. Rajput & Ors. -Respondents
Civil Appeal No. 8279 of 1997
(Arising out of S.L.P. (C) No. 17369 of 1997)
Decided on 25-11-1997
Counsel for the Parties :
For the Appellant, Soli J. Sorabjee, Sr. Advocate, Y.N. Oza, Manoj Wad, Ms. J.S. Wad,, Yashank Adhyaru, Advocates.
For the Respondent No. 1, Pallav Sisodia, Anil Shrivastava, Ms. Sumita Hazarika, Advocates.
For the Respondent No. 2, Prashant Kumar, (Ms. Alka Aggarwal), Advocate for I. M. Nanavati, Advocate.
Held : There is no indication or suggestion in Article 243-T or in the Act that in case the office of the President is required to be filled by a member who is a Scheduled Caste, Scheduled Tribe, Backward Class or a woman, then only a member who has been elected from a reserved seat can stand for election. In other words, for the purpose of election to the post of President the reservation which is contemplated by the Act is only to the effect that the person elected should belong to the category of Schedule Caste, Schedule Tribe, Backward Class or woman, as per the roster. Conceivably, as in the present case, an elected member may fall within two or more categories and, in this way, may be in a position to seek re-election as envisaged by Section 33 of the Gujarat Municipal Act. If this is not so, and with category changing every year, as per the roster, Section 33 will become redundant. The legislative intent, therefore, clearly is that one person, whether elected from reserved or general seat, but who belongs to the category out of which the President is to be elected, can seek re-election as envisaged by Section 33 of the Act. The rules framed under the Act also do not contain any provision that only members elected to the reserved seats will be eligible to stand for election of the President when, as per the roster, the office is required to be filled by a person belonging to a particular category. (Paras 10, 11)
The appellant who belongs to the Backward Class was eligible to stand for the office of President even though he had been elected as a member of the municipality not from a reserved seat but from a general seat. As per the roster it is a Backward Class member who in the year 1997 is to be the President of the Jambusar Municipality. The appellant, who admittedly belongs to a Backward Class could not be regarded as being ineligible merely because he had not been elected to a seat which had been reserved for a Backward Class candidate. Consequently his election as the President, on this ground, could not have been set aside. (Para 18)
JUDGMENT
Verma, CJI.-The only question which arises for consideration in this appeal is whether the appellant, who belongs to a backward class but had been elected to the Jambusar municipality from an unreserved seat, could stand for election for the post of President of the Municipality which was reserved for a backward class candidate or whether the candidate for that post could only be a person who was elected to the municipality from a seat which was reserved for the backward class.
2. With a view to provide for setting up of democratic institutions at the grass root level, by virtue of 73rd Amendment to the Constitution, Part-IXA providing for establishment of the municipalities was incorporated in the Constitution. Article 243-Q, inter alia, provides for the setting up of municipalities in urban area and Article 243-T requires all seats in the municipalities to be filled by persons chosen by direct election. For this purpose each municipal area is to be divided into territorial constituencies to be known as wards from where the election takes place. Reservation of seats for Scheduled Castes, Scheduled Tribes and women is required to be provided for by virtue of Article 243-T of the Constitution which reads as follows :
"243-T. Reservation of seats.- (1) Seats shall be reserved for the Scheduled Castes and 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 allowed by rotation to different constituencies in a Municipality.
(2) No 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 Article 334.
(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."
3. The aforesaid article not only provides for reservation of seats for Scheduled Castes and Scheduled Tribes and Women in the municipalities but also envisages that such reservation of seats shall be by rotation. In addition to reservation to the municipalities, sub-article (4) also contemplates the State Legislatures providing, by law made in this behalf, reservation for the Scheduled Castes, Scheduled Tribes and women to the post of chairperson in the municipalities. Further to the aforesaid reservation for Scheduled Castes, Scheduled Tribes and women, sub-article (6) of Article 243-T empowers the State Legislatures to make provision for reservation of seats, in any municipality or offices of Chairperson in the municipalities, in favour of backward class citizens.
4. The Gujarat Municipal Act, 1963 was amended by Act 17 of 1993 so as to bring it in conformity with the provisions of Part IXA of the Constitution. Section 6 of the Gujarat Municipal Act made provision for reservation
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