2007 Supreme(Del) 503

IN THE HIGH COURT OF DELHI AT NEW DELHI
BADAR DURREZ AHMED. J.
RAMESH DUTTA - Petitioner
Versus
THE STATE ELECTION COMMISSION - Respondent
WITH
WP (C) 1331/2007, WP (C) 1336/2997, W.P. (C) 1399/2007, (C) 1400/2007
Decided on : 6.03.2007

The manner of allotment of seats for Scheduled Castes, women belonging to Scheduled Castes and women (general) must be reasonable and not arbitrary or discriminatory or mala fide.

Headnote:

The challenge is to the Notification dated 17.02.2007 bearing F.No. SEC/MCD/Admn./2007/3938 issued by the Election Commissioner of The National Capital Territory of Delhi in purported exercise of powers conferred by sub-sections (7) and (8) of section 3 of The Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the DMC Act") read with the Government of India, Ministry of Home Affairs Notification No. U-14011/187/93-Delhi dated 14.12.19931, whereby the number of seats to be reserved for women belonging to the Scheduled Castes from amongst the seats reserved for the Scheduled Castes were determined to be 16 and the number of seats for women (General) from amongst the unreserved seats to be 76 and the same were allotted to the wards as per the table given in the notification itself. The challenge is that:-

Fact of the Case:

The petitioners are those who intended to contest in the next election to be held on 05.04.2007 but, have allegedly been shut out because the wards from where they wanted to contest have been allotted to either scheduled castes or women.

Finding of the Court:

The court held that the impugned notification of 17.02.2007 has gone wrong in not uniformly applying these criteria. The same is, therefore, set aside.

Issues: 1. Whether the writ petitions are maintainable? 2. Whether it was necessary to disclose the manner in which seats were reserved for Scheduled Castes and/or for women in the notification dated 17.02.2007 itself? 3. Whether the manner indicated in the counter affidavit filed on behalf of the State Election Commission was arbitrary and contrary to Constitutional provisions? 4. Whether even the manner indicated in the counter affidavit has not been followed and this has given way to a policy of “pick and choose”? 5. Whether a mandatory requirement has been flouted inasmuch as the Notification dated 17.02.2007 does not purport to be a Notification under Section 5 (2) of the DMC Act?

Ratio Decidendi: 1. The court held that the writ petitions are maintainable as the validity of a statute is not called any question, the Notification dated 17.02.2007 does not have the force of law and, therefore, it is not hit by the bar under Section 243ZG, the election process has not commenced and the directions sought by the petitioners are to facilitate the election in accordance with the rule of law and not to impede the process of election. 2. The court held that there is no statutory requirement for disclosing the manner of allotment of seats reserved for the Scheduled Castes or women in the notifications issued under section 5(2) of The DMC Act. However, such a manner must be discernible from the records of the Central Government (including its delegates). The manner must be reasonable and not arbitrary or discriminatory or mala fide. 3. The court held that the manner indicated in the present case of identifying seats reserved for scheduled castes based on the twin criteria of ranking seats in decreasing proportion of population and limiting them to not more than two per assembly segment cannot be interfered with as it is neither arbitrary nor discriminatory nor malafide. Even the criterion of allotting every third seat from the list of wards arranged as per the serial numbers of the wards for women cannot be questioned. 4. The court held that the impugned notification of 17.02.2007 has gone wrong in not uniformly applying these criteria. The same is, therefore, set aside. 5. The court held that the Notification dated 17.02.2007 would have to be deemed to be a Notification also issued in exercise of powers under Section 5 (2) of the DMC Act.

Final Decision: The court set aside the impugned notification of 17.02.2007 and directed that a fresh notification based on the manner of allotment of seats as indicated in the draft presented before the court be issued immediately.