The Gwalior Bench of Madhya Pradesh High Court has stayed the order reserving the office of the Chairperson of Municipal Council Indergarh, District Datia (MP) for Scheduled Caste.
The petition was filed by Rajkumar Yadav through Advocate Pratip Visoriya, challenging the constitutional validity of the Madhya Pradesh Municipalities (Reservation of Office of Mayor and President) Rules, 1999, alleging that the rules do not provide for the mode of rotation for reservation to the office of President of Municipality and are thus not in tune with the constitutional scheme of Article 243T, which mandates rotation as a mode for reservation of all seats to be filled by direct election in all subsequent elections, including the seat of Chairperson/President.
Counsel for the Petitioner said that every state is mandatorily required to constitute Nagar Panchayat, Municipal Council or Municipal Corporation as the case may be for different urban areas of different population, except for areas where municipal services are adequately managed by an industrial establishment, if notified as industrial township.
Clause (1) and as well as Clause (3) of Article 243T of the Constitution, relating to seats to be filled by direct election and seats to be filled by women respectively, both expressly provide that the allocation of seats so reserved may be by the process of rotation between different constituencies in a Municipality, said Mr Visoriya.
Therefore, the constitutional scheme contained in Article 243(T) recognises the concept of rotation to eliminate the possibility of blocking of only few seats, which got reserved in the initial election [at the time of constitution of Municipality] for SC/ST/OBC/Women, for perpetuity, which would be abhorrent to the democratic concept of equal and reasonable opportunity of contesting as a candidate and of being represented as a voter by persons of different categories and classes in the society, he added.
Ankur Mody, Additional Advocate General for the State, submitted that for SC/ST category, neither the Constitution, nor the MP Municipalities Act, 1961 and not even the 1999 Rules permit rotation system to be followed for working out reservation.
Therefore, if the office of President of a particular municipality was initially reserved for SC, then it can continue to be reserved for the same category, which means SC in all subsequent elections for all times to come.
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The division bench of Justices Sheel Nagu and Anand Pathak held on Thursday that Section 20 of the MP Municipalities Act, 1961 deals with election petition and it starts with non obstante clause that no election or nomination under this Act be called in question except by a petition presented before the District Judge of the concerned revenue district, in which the election is held in accordance with the provisions of the Section.
This provision bars the challenge to election or nomination except by election petition. In such legal backdrop, it is to be seen whether the procedure which is under challenge gets the umbrella of election process or its a prelude to the commencement of elections.
The High Court cited earlier judgements of the Apex court, in which the Supreme Court found that election process starts from the notification and for facilitation of election proceedings, scope of interference exists prior to it.
Moreover, the Court observed that the system of rotating of SC/ST seats in the offices of Chairperson among all the municipalities turn by turn counters the adverse effect of reservation in general and also prevents blocking of a few offices of Chairperson of Municipalities in perpetuity for SC/ST.
The High Court deems it appropriate to adopt the principle of harmonious interpretation by prima facie holding that the system of rotation is inherently prescribed in Rule 6 for reservation of SC and as well as ST in the office of Chairpersons of Municipalities for all subsequent elections. Consequently, the act of official respondents in reserving the seat of office of the Chairperson of Municipal Council Indergarh, District Datia (MP) for SC/ST since last several elections is prima facie violative of Article 243T.
“Accordingly, as an interim relief, it is directed that the Notification/Order of December 10, 2020 reserving the office of the Chairperson of Municipal Council Indergarh, District Datia (MP) for SC is stayed”
-observed the two-Judge bench.