JUDGMENT :

A.A. SAYED, J.

1. The Petitioners, who are Councillors of Mumbai Municipal Corporation, have questioned the Constitutional validity of the Ordinance No. XIII of 2021 dated 30 November 2021. By the impugned Ordinance, section 5(1)(a) of the Mumbai Municipal Corporation Act, 1888, is amended by increasing the number of directly elected Municipal Councillors from 227 to 236.

2. Section 5 of the Mumbai Municipal Corporation Act, 1988, provides for the composition of the Mumbai Municipal Corporation (hereinafter referred to as ‘the Corporation’). Section 5(1)(a) reads thus:

“(1) The Corporation shall consist of:

(a) two hundred and twenty seven Councillors directly elected at Ward elections.”

3. Census is taken every ten years under the Census Act, 1948 and Census Rules, 1990. The case of the Petitioners is as under:

(i) In the 1991 Census of India, the population of Brihan Mumbai (hereinafter referred to as “Mumbai”) was recorded as 98,09,936. The number of directly elected Councillors (hereinafter referred to as ‘Councillors’) in the Corporation was 221.

(ii) In the next Census i.e. 2001 Census, the population of Mumbai was recorded as 1,19,78,450. Due to the increase in population, the number of Councillors was increased from 221 to 227 (by Ordinance dated 7 September 2001).

(iii) In February 2002, elections were held to the Corporation with 227 Wards.

(iv) In the next Census i.e. 2011 Census, the population of Mumbai was recorded as 1,24,42,373.

(v) It is pointed out on behalf of the Petitioners that on 5 November 2011, a Notification was issued by the State Election Commissioner in exercise of powers under section 5A, 18A and 19 of the Mumbai Municipal Corporation Act for fixing the number and the extent of the Wards into which the Municipal area of the Corporation was to be divided and specifying the Wards reserved for Scheduled Castes, Scheduled Tribes, Women and Backward Class of citizens. This exercise was carried out for the elections which were to be held in the year 2012 with 227 Wards.

(vi) On 16 February 2012, elections were held to the Corporation with 227 Wards.

(vii) Thereafter, on 25 November 2016, a Notification under sections 5A, 18A and 19 of the Mumbai Municipal Corporation Act was issued by the State Election Commissioner, to carry out similar exercise for the elections which were to be held in the year 2017 with 227 Wards.

(viii) On 21 February 2017, elections were held to the Corporation with 227 Wards.

(ix) The next Census was due in the year 2021. Though the Census work had begun, on account of the Covid-19 pandemic, the work of 2021 Census was directed to be postponed until further orders, by a Notification dated 25 March 2020 issued by the Census Commissioner of India.

The main contention of the Petitioners is that without waiting for the 2021 Census, the impugned Ordinance was promulgated on 30 November 2021 without any recent empirical data in relation to population, reservation, sex and changes in the boundaries of Wards, and the figures of 2011 Census, which was a decade old, could not have been the basis for amending section 5(1)(a) of the Mumbai Municipal Corporation Act.

4. We have heard learned Senior Counsel for the Petitioners, learned Advocate General for the Respondent No. 1-State, learned Senior Counsel for the Respondent No. 4-Municipal Corporation of Greater Mumbai and learned Counsel for the Respondent no. 2-Maharashtra State Election Commission.

5. Learned Senior Counsel for the Petitioners submitted that the impugned Ordinance is in violation of Article 14 of the Constitution and the challenge is based on two grounds:

(i) Manifest arbitrariness.

(ii) Irrationality.

(i) Manifest arbitrariness:

Learned Senior Counsel for the Petitioners submitted that until the 2021 Census is carried out, the power under section 5(1)(a) of the Mumbai Municipal Corporation Act, 1888 is not available and cannot be exercised to increase the number of Councillors from 227 to 236. He has invited our attention to section