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Rajasthan High Court
D.L. Mehta, J.
Bhagi Rath - Appellant
Versus
The State of Rajasthan - Respondents
S.B. Civil Writ Petition No. 246 of 1983
Decided On : July 27, 1983
The question relating to the delimitation of the ward is not justifiable, they being the matters purely within the ambit of the executive power, and it is for the Government to arrange the distribution of wards taking into consideration various factors, such as compactness of the area, the population and the electoral rolls etc. There is bound to be disparity between the one and the other in the matter of voting strength due to the various factors. The population and the voting strength cannot be the sole criterion in these matters. The provisions of s. 9 (2) and S. 14 (1) (b) of the Act as ultra vires, the plea of the petitioner is rejected. (paras 14 & 17)
It is, however, well settled that Art. 14 of the Constitution can be used to struck down the law as well as the executive acts performed under the colour of law, if there is discrimination. Similarly where on the very face, it appears that the constitution of a particular ward was clearly discriminatory and made with a mala fide interest to defeat the interest of certain members of a caste, the High Court would not be slow to interfere. Reference in this connection may be made to Anop Chand Ghiya Versus The State of Rajasthan (2). Learned counsel for the respondents have submitted that the question relating to the delimitation of the ward is a question of fact and is not justiciable. The proposition laid down in Anop Chands case (2) is applicable to the case in hand, it has been held by the Supreme Court that executive should be given the full liberty to exercise the powers vested in it and the Courts should be reluctant to interfere unless the good foundation is laid down to show the act of the executive as arbitrary, discriminatory and malaflde. If from the record, it is available that the executive has not applied its mind and has passed the order mechanically, then the Court will have to interfere with the decision of the executive. I am of the view that the proposition laid down in the above referred case is fully applicable in the instant case also. (Paras 14 & 15)
From the perusal of Schedules I and IT, it is clear that strength of the voters exceeds by 670 than the total population in Ward No. 28. Neither the State Govt. nor the counsel for the petitioner could give any explanation in the matter. It is the common experience that the strength of the voters is generally about 40% to 5o% of the total population. One cannot imagine that the number of voters will exceed the total population of the ward. From this uncontro-verted and admitted fact, it is evident that the limitation has been done without the application of the mind at all. Even otherwise if we take Ex.R.l as the basis for the purpose of delimitation of the ward read with S. 13 (2) of the Act, even then there is a clear non-compliance of Ex. R.l the order dated September 27, 1982 passed the State Govt. The act of delimitation of the ward is arbitrary in nature and it seems that it has been done mechanically. The average population on the higher side is also not in conformity with Ex.R.l. From the perusal of Ex.R.2 and Ex.R.4 it is clear that the population of Chak No. 6-z and 6-z A and the area referred on the western side has not been taken into consideration to a great extent. Thus it is clear that the State Govt. has not considered the extended area referred to above while preparing the delimitation of the wards. The delimitation of the wards is not according to the guidelines mentioned in Ex.R.l and some area has also been left over at the time of the consideration. I accept the writ petition in part, set aside the order Ex. 1 dated December 4, 1982 and quash the delimitation of the wards made by the Government by the order under reference. (Paras 15, 16 & 17)
2. The State Government purporting to Act under s. 9 of the Rajasthan Municipalities Act, (No. 38 of 1959) for short the Act herein refixed the number of seats for Municipal Council, Sri Ganganagar as 40 vide notification dated September 27, 1982 published in the Rajasthan Rajpatra Extra-ordinary Part VI (Ka) and out of the total 40 seats, 33 seats were declared as general seats and 7 seats were reserved for scheduled caste. Thereafter, by notification dated October 14, 1982 published in the Rajasthan Rajpatra Part VI (ka), the State Government under s. 4 of the Act extended the territorial limits of the Ganganagar Municipal Council. After extension of the territorial limits of Ganganagar Municipality, the Collector, Sri Ganganagar submitted proposals to the State Govt. for fresh delimitation of wards of Ganganagar Municipality vide letter dated October 28, 1982. The State Government vide Notification dated November 5, 1982 published in the Rajasthan Rajpatra has approved the proposals for delimitation of 40 wards of the Municipality. After considering the objections against the daft proposals, the State Govt. has published an order (Ex. 1) under s. 14(1) of the Act in Rajasthan Gazette dated December 4, 1982 Part VI (ka). This order defines the area of each of the 40 wards of the Municipality and denotes the wards which have been reserved for scheduled caste candidates. After publication of the order (Ex. 1), the Sub-Divisional Magistrate, Srigangangar issued a notice (Ex. 2) dated January 3, 1983 that voters list of the Ganganagar Municipality has been kept in the office of the Municipal Council, Ganganagar as well as in his office. Objections, proposals for the correction in the voters list were invited by January 18, 1983. Alongwith the writ petition, the petitioner has filed Schedule- I showing the total population in each ward of the Ganganagar Municipality as well as the population of the members of the Schedule Caste in each ward and Schedule-II showing the total number of votes in each ward of the Ganganagar Municipality.
3. On behalf of the State, the reply has been filed and the figures shown in Schedule I and Schedule II have been accepted as correct. On behalf of the Municipal Council also, reply has been filed and the figures given in Schedules I and II were not controverted.
4. I have heard Mr. B. L. Purohit, learned counsel for the petitioner, Mr. R.P. Dave, learned Deputy Government Advocate and Mr. B. R. Arora for non-petitioner No. 2.
5. Learned counsel for the petitioner has submitted that according to the 1981 Census Report, the total population for the purpose of delimitation of the wards, is 1,26,038; out of that the total population of the members of the scheduled caste has not adopted as 22, 782 and that the total population of the members of the schedule tribes has been adopted as 666. Learned counsel for the petitioner has further submitted that vide order published in the Rajasthan Gazette dated October 14,1982, the Municipal limits of the Municipal Council, Ganganagar were considerably extended that on account of this extension of limits, the general population increased in greater proportion than the scheduled caste population and the ratio between the two populations were consequently altered and that it was, therefore, necessary for the Government to refix the number of reserved seats on the basis of the altered ratio of the General and scheduled caste populations. He has also submitted that under s. 9(2) of the Act, the number of reserved seats must bear the same proportion to the total number of the seats which scheduled caste population bears to the general population. In other words, the learned counsel for the petitioner has challenged the vires of s. 9(2) of the Act. In the writ petition the petitioner has prayed that a direction or order
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