No limitation in A.243S which contains any prohibition of having more than one member for a Ward; SC

We have analysed the provisions of Article 243R, 243S and have come to the definite conclusion that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward. (Para 59)

PARMAR SAMANTSINH UMEDSINH V. STATE OF GUJARAT & ORS.

Civil Appeal No. 706 of 2021 (Arising out of SLP(C)No.24950 of 2015) with Civil Appeal No. 707 of 2021 and Writ Petition (C)No.786 of 2020

Decided on February 24, 2021.

Counsel for appellant: Shri Maninder Singh

Counsel for respondents: Shri Tushar Mehta, Ms. Manisha Lavkumar

A three-judge bench of the Supreme Court comprising of Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah decided the case at hand. The Court dismissed the appeal and stated that the Division Bench of the High Court did not commit any error in dismissing the writ petition filed by the appellants.

The appellant filed a writ petition challenging Section 5(3)(iii)(a) and Section 29A of the Gujarat Provincial Municipal Corporation Act, 1949 before the Division Bench of the High Court, which was dismissed by the Court. Aggrieved by the decision of the Division Bench, the present civil appeal was filed. Civil Appeal No. 707 of 2021 was filed, wherein it was requested to the State Election Commission to declare the dates of holding Elections of Panchayats in the State of Gujarat forthwith. The State Election Commission responded and stated that the election of 6 Municipal Corporations, 53 Municipalities, 3 newly constituted Municipalities, 23 Taluka Panchayats and 31 District Panchayats which were to be held in the month of October/November 2015 was not decided. The Court, by order, stated that the action of the State Election Commission for postponement of the election of all local bodies in the State is illegal and is set aside. Aggrieved by the decision of the High Court, the State Election Commission filed the present appeal.

Writ Petition(C)No.786 of 2020 was filed challenging the Notification dated 08.07.2020 issued by the Governor of Gujarat in exercise of power under Section 5(3)(iii)(a) of the Gujarat Provincial Municipal Corporation Act, 1949, determining the number of Wards, seats including the seats reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and women of Vadodara Provincial Corporation, Ahmedabad Provincial Corporation, Bhavnagar Provincial Corporation, Gandhinagar Provincial Corporation, Jamnagar Provincial Corporation, Rajkot Provincial Corporation and Surat Provincial Corporation.

The following questions arose for the consideration of the Court:

(1) Whether Article 243R and Article 243S of the Constitution of India contains any limitation to the effect that there shall be only one member from one Ward?

(2) Whether the provisions of Sections 5(3)(iii)(a), 29A of the Gujarat Provincial Municipal Corporations Act, 1949 and Rules 4 and 5 of Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994 and Rule 2(b) of Gujarat Municipal Corporation’s Ward Committees Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007 are ultra virus to the provisions of Articles 243R and 243S of the Constitution?

(3) Whether having more than one representative from a Ward negates the empowerment of weaker sections, i.e., women, Scheduled Castes and Scheduled Tribes?

(4) Whether when the draft rules for amendment of Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994 were issued on 27.11.2014 which were to be published after noting of objections on or expiry of thirty days, the State Government could have issued notification dated 04.12.2014 before expiry of thirty days? (Para 22)

The learned Counsel for the appellant in the first matter, Shri Kapil Sibal, put forth his arguments that the provisions of Article 243R and 243S of the Constitution of India does not permit multi-member representation from a Ward in the Municipal Corporation/Municipality. It was submitted that the impugned provisions and Notification are in contravention of the principle enshrined in Article 243S of the Constitution and that the election to a Municipal Corporation ought to be conducted in the same manner as State Legislative Assembly, wherein different constituencies are represented by one member and no more.

The learned Counsel for respondents argued that in Gujarat there were always multi-member Wards and submitted that the expression “the member” used in sub-clause (4) of Article 243S is used in reference to the Chairperson; that Article 243S does not contain any provision which states that there shall be only one member for one Ward.

The Court heard the learned Counsels for the parties.

The Court dealt with the first two issues and observed:

Thus,the Legislature of a State may by lay has to provide all matters relating to or in connection with election to the Municipalities, which includes filling of the seats in the Municipality by person chosen by direct election. Articles 243R and 243ZA does not give any indication as to whether from territorial constituency, i.e., the Wards, whether only one member has to be elected in the Municipality or it can be multiple member constituency. The constitutional provisions of Article 243R, which provides for composition of Municipalities and that of Article 243ZA does not give any indication to the above. (Para 50)

The Court futher stated:

Sub-article(3) of Article 243S cannot be read to mean that it mandates that from one Ward more than one members cannot be made representatives. In cases, where there are more than one member from one Ward all will become the member of the Committee. When all the members of the Municipality representing a Ward are members of the Committee, there is no breach of Article 243S(3). (Para 53)

The Court concluded that provisions of Section 5(3)(iii)(a) as well as Rules 4 and 5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not inconsistent with provisions of Article 243S and stated:

We have analysed the provisions of Article 243R, 243S and have come to the definite conclusion that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward. (Para 59)

With regards to Issue 3, the Court answered:

Having more than one representation from a Ward in no manner negates the empowerment of weaker sections rather it increases the empowerment of weaker sections. (Para 70)

The Court stated, regarding Issue 4, that:

Notification dated 04.12.0214 being not in reference to notification dated 27.11.2014 which notification was on entirely different subject, there is no illegality in issuing notification dated 04.12.2014. (Para 76)

The Court dismissed the appeal as having become infructuous.

View/Download Judgment: PARMAR SAMANTSINH UMEDSINH V. STATE OF GUJARAT & ORS.

Utkarsh Kumar Jayaswal