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2009(2) Supreme 156
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Lokeshwar Singh Panta and B. Sudershan Reddy, JJ.
Bihari Lal Rada — Appellant
versus
Anil Jain (Tinu) & Ors. — Respondents
Civil Appeal No. 976 of 2009
(Arising out of SLP(c) No. 19237 of 2008)
Decided on : 13-02-2009
(b)Haryana Municipal Act, 1973 – Section 10 and 18 r/w Rule 70(4), Haryana Municipal Elections Rules, 1978 – Notification dated 8.4.2005 providing that Office of the President, Municipal Committee, Hisar shall be filled up from the members belonging to the general category. (Para 18)
(c)Haryana Municipal Act, 1973 – Section 10(5) r/w Article 243T, Constitution of India – These provisions do not provide for any reservation to the office of the President in favour of any candidate who does not belong to Scheduled Caste or Backward Class – There is no separate category like general category – The expression ‘belonging to the general category’ wherever employed means the seats or offices earmarked for persons belonging to all categories irrespective of their caste, class or community or tribe – The unreserved seats euphemistically described as general category seats are open seats available for all candidates who are otherwise qualified to contest to that office – There is nothing in law that a person belonging to Backward Class and got himself elected from a ward reserved for that class is debarred from contesting the election to the office of President/Chairperson when that office is not reserved and meant to be filled in from the members belonging to the general category. (Para 32)
(1960)1 SCR 426; (1995) 2 SCC 745; (1995) 6 SCC 684; 1992 Supp (3) SCC 217; (1998)1 SCC 285 – Relied upon.
(d)Haryana Municipal Act, 1973 – Section 10(5) r/w Article 243T, Constitution of India – Wherever the office of the President of a Municipality is required to be filled in by a member belonging to Scheduled Caste, Scheduled Tribe or Backward Class as the case may be it would be enough if one belongs to one of those categories – The fact whether they have been elected from a general ward or a reserved ward is not relevant. (Para 33)
Facts of the case :
1. In election to the Municipal Council, Hisar, out of the total 31 wards, 15 were reserved for the members belonging to Scheduled castes and 2 wards were reserved for Backward Class category.
2.The respondent/writ petitioner was elected from ward no. 2 which was general category and not reserved. The appellant herein was elected from ward no. 18 which was reserved for Backward Class category.
3.Thereafter election was held to the office of the President, in which all the 32 Municipal Councilors participated. The appellant secured 19 votes whereas the respondent got 13 votes and accordingly the appellant was declared to have been duly elected as the President.
4.The respondent herein challenged the said election of the appellant.
5.The learned Single Judge dismissed the writ petition and upheld the election of the appellant. On appeal, however, the Division Bench set aside the judgment of the learned Single Judge and quashed the election of the appellant herein as the President of Municipal Council, Hisar.
Finding of the Court :
The Division Bench erred in setting aside the writ court judgment.
Result : Appeal allowed.
JUDGMENT
B. Sudershan Reddy, J. —
1. Leave granted.
2. This appeal is preferred against the Judgment and Order dated 31.07.2008 made in LPA No. 66 of 2007 of the High Court of Punjab and Haryana at Chandigarh whereby the Division Bench vide the impugned judgment set aside the election of the appellant as the President of the Municipal Council, Hisar.
3. The facts, in brief, to be noticed for the purpose of disposal of this appeal, are that election to the Municipal Council, Hisar was held on 16.4.2005. In all there were 31 wards out of which 15 wards were reserved for the members belonging to Scheduled Castes and 2 wards were reserved for Backward Class category. The respondent/writ petitioner was elected from ward no. 2 which was general category and not reserved in favour of any one of those categories mentioned herein above. The appellant herein was elected from ward no. 18 which was reserved for Backward Class category. Thereafter election was held to the office of the President, Municipal Council, Hisar on 29.8.2006. In the election held on 29.8.2006, in all 32 Municipal Councilors participated. The appellant secured 19 votes whereas the respondent got 13 votes and accordingly the appellant was declared to have been duly elected as the President of the Municipal Council, Hisar.
4. The respondent herein challenged the said election of the appellant mainly on the ground that as per the Notification issued by the Competent Authority the office of the President of Municipal Council, Hisar “has been reserved for general category candidate and the same shall be filled in from amongst the members belonging to general category. Meaning thereby, for the office of the President of Municipal Council, Hisar only the members elected from the eneral category had a right and not the member elected from Backward Class category.” The contention was, once the office of the President of a Municipality is reserved to be filled in by persons belonging to Scheduled Castes and Backward Class category, the candidate elected from general category has no right to be elected as the President. Similarly, general category is also a separate category, therefore, only members among the general category have a right to hold the post of President “which is reserved categorically for general category”, therefore, the member coming from Backward Class category cannot become the President of the Municipality which is earmarked for general category. It was on that ground the respondent herein filed the writ petition seeking a writ of certiorari to quash the proceedings whereunder the appellant was declared to have been duly elected as the President of Hisar Municipality.
5. The learned Single Judge after an elaborate consideration of the matter dismissed the writ petition and upheld the election of the appellant as the President of the Municipal Council, Hisar. On appeal preferred by the respondent herein, the Division Bench vide the impugned judgment set aside the judgment of the learned Single Judge and quashed the election of the appellant herein as the President of Municipal Council, Hisar. Hence this appeal.
PART-I
6. Reference to Constitutional provisions is necessary to appreciate and resolve the controversy involved in the present case. The reservations in favour of the Scheduled Castes, Scheduled Tribes and other Backward Classes are authorized by Constitutional provisions that permit departure from formal equality for the purposes of favouring specified weaker sections of the Society.
7. Ever since the adoption of the Constitution, there have been efforts at democratic decentralization of power. A reference may be made to Article 40 of the Constitution which obligates the State to take steps to re-organise village Panchayats and endow them with such powers and functions as may be necessary to enable them to function as units of self-government. How far the local self-government institutions at the gross roots have attained the objectives of democra
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