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2016 Supreme(Bom) 1837
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.R. Gavai and V.M. Deshpande, JJ.
Ambedkarite Party of India, through its Authorised General Secretary Mrs. Vidya Kishor Bhimte – Petitioner
Versus
State of Maharashtra, through its Principal Secretary – Respondent
Writ Petition No. 3474 of 2016
Decided On : 16-09-2016
For the Petitioner: Mr. N.D. Sonare.
For the Respondents: Mr. Rohit Deo with Mrs. Bharti Dangre and Ms N.G. Choubey.
Headnote:Constitution of India, 1950-Article 243-R, Clause 2(b)-Maharashtra Municipal Corporation Act, 1949, Section 21-Maharashtra M.C.N.P. & I.T. Act, 1965, Section 14(2)- Maharashtra M.C.N.P. & I.T. Ordinance, 2016-Elections to Municipal Councils.-Amendment as per Ordinance 2016, providing for multi Member ward system to elections for Municipal Council, not unconstitutional.
Insofar as the second argument regarding the impugned Ordinance violating the principle of `One Man One Vote and One Value` is concerned, in Court`s considered view, the same is also without substance. If a particular ward is to elect five Councillors, then a person from the said ward will have to vote for different five persons contesting from the said ward. It is not as if, that the voter would be entitled to cast all his five votes in favour of one particular candidate. Had this been the position, then certainly the petitioner would have been justified in saying that the principle of `One Man One Vote and One Value` is adversely affected. However, the counsel fairly concedes that, that is not the position.
Constitution of India, 1950-Article 243-R, Clause 2(b)-Maharashtra Municipal Corporation Act, 1949, Section 21-Maharashtra M.C.N.P. & I.T. Act, 1965, Section 14(2)- Maharashtra M.C.NP & IT Ordinance, 2016-Election of Municipal Councils.-Direct election of President/Chairperson of Municipality provided by amended ordinance not unconstitutional.
It can thus be seen that the Constitution of India has itself left it to the wisdom of Legislature to provide for the manner of election of Chairperson of the Municipality. Unless there is any provision under the Constitution which prohibits election of the President of Municipal Council by direct electorate, the statutory provision cannot be held to be unconstitutional. Counsel has not been in a position to point out to Court any provision in the Constitution which prohibits direct election of the President of Municipal Council.
B.R. Gavai, J.
1. Petitioner has approached this Court being aggrieved by the Ordinance promulgated by the Hon'ble Governor of Maharashtra called as "the Maharashtra Municipal Corporations and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township (Amendment) Ordinance, 2016 hereinafter referred to "the amended Ordinance". By virtue of the said Ordinance, amendments have been effected to the Maharashtra Municipal Corporations Act (hereinafter referred to as "the Corporations Act" and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "the Act of 1965"). The amendments provide that, insofar as the Municipal Corporation is concerned, each of the wards shall elect as far as possible four Councillors but not less than three and not more than five Councillors. It further provide that each voter would be entitled to cast the same number of votes, as number of Councillors to be elected in his ward.
2. Insofar as the general elections to the Municipal Council are concerned, it has been provided that each of the wards shall elect as far as possible two Councillors but not more than three Councillors. It has been further provided that each voter shall, not withstanding anything contained in sub-section (2) of Section 14, be entitled to cast the same number of votes, as the number of Councillors to be elected in his ward.
3. Another ground of challenge is with regard to election of Chairpersons of Municipal Councils directly. According to the learned Counsel, there is no provision in the Constitution which permits election to the post of President of Municipal Council to be done directly and as such, the amendment violates the Constitution of India.
4. Mr. N.D. Sonare, learned Counsel appearing on behalf of the petitioner, which is a registered political party, submits that the Constitution Bench of Hon'ble Supreme Court has held that Secularism is one of the basic feature of the Constitution of India. Learned Counsel submits that, by providing for multi Member Ward System, the very concept of Secularism is under attack inasmuch as the community having majority of votes in a particular ward would be dominating the elections in that ward. Learned Counsel submits that such a System is prejudicial to small political party like the petitioner.
5. Learned Counsel further submits that 'One Man One Vote and One Value' is the basic concept recognised in the Constitution of India and by the impugned Ordinance, the said principle is sought to be given a total go-bye.
6. The learned Counsel has taken us through the speeches given by Dr. B.R. Ambedkar as well as other members in the Constituent Assembly debates.
7. Mr. Rohit Deo, learned Acting Advocate General, on the contrary, submits that the issue is no more res integra. He submits that the issue is put to rest by two Division Bench Judgments; one in Writ Petition No.4855 of 2011 delivered by the Division Bench at Aurangabad on 23.8.2011 and the other one in Writ Petition No.10354 of 2011 delivered by the Division Bench at the Principal Seat in Mumbai on 23.12.2011.
8. No doubt that the arguments advanced by the learned Counsel for the petitioner appears to be attractive at the first blush. Nobody would deny that the Indian Constitution recognises Secularism to be one of the basic concepts of it. With the development of law by Their Lordships of Hon'ble Supreme Court and various High Court, it cannot be denied that Secularism will have to be construed to be a basic structure of the Constitution of India. However, the question that would be required to be considered is as to whether the impugned Ordinance attacks the concept of Secularism or not.
9. Another argument of the learned Counsel regarding the concept of 'One Man One Vote and One Value' also finds place in the Indian Constitution. Learned Counsel is right in relying upon various speeches of Dr. B.R. Ambedkar as well as other eminent members of the Con
