R.A. Jahagirdar, J.
1. An order dated 28th of March, 1983 passed by the Collector of Nasik under section 10 of the Maharashtra Municipalities Act, 1965 is the subject matter of challenge in this petition under Article 226 of the Constitution of India. By the aforesaid order, the Collector, in exercise of the powers vested in him, divided the Municipal area of Yeola Municipality into different wards for the purpose of the elections, under Chapter II of the Maharashtra Municipalities Act, hereinafter referred to as the ''Municipalities Act''. It is the petitioners' case that while exercising this power and while also using certain discretion vested in him the Collector has committed flagrant violation of the duty cast upon him and has also committed grave errors in the exercise of the jurisdiction vested in him. The petitioner's case is that under section 10 of the Municipalities Act, each Municipal area has to be divided in to different wards of equal population and any order which results in the creation of wards with hopelessly unequal populations must be held to be one which is in defiance of the requirement under section 10 of the Municipalities Act.
2. We must now proceed to mention the facts which have led the petitioners to this Court. The Municipal Council in question is the Yeola Municipal Council in Nasik District. In the year 1978, elections had been held for the Municipal Council, the area of which had been divided in to 24 wards. Each ward had, in terms of section 10(2) of the Municipalities Act, one seat and accordingly 24 Councillors had been elected to the Municipal Council.
3. By a notification dated 18th October, 1982 issued under section 9 of the Municipalities Act, the Director of Municipal Administration has fixed the number of wards in Yeola Municipal Council at 26. After doing so, the Director has addressed a letter to all the Collectors intimating to them that the election should be held in accordance with the programme mentioned in the said letter.
4. The delimitation of the 26 wards in the Yeola Municipal area had to be done and in exercise of this duty the Collector of Nasik requested the Chief Officer of the Municipal Council to prepare a draft division of the Municipal area into different wards. By a somewhat unusual procedure, the draft prepared by the Chief Officer of the Municipal Council went before the Municipal Council itself which adopted the same and forwarded it to the Collector for taking appropriate action under section 10. In accordance with the requirement of the proviso to section 10 (1), the said draft division of the wards was kept open for objections. It is mentioned that objections were lodged by some of the citizens. It has been further mentioned that a local M.L.A. belonging to the ruling party also lodged an objection, which was practically in the nature of an alternative plan along with a map. The petitioner's grievance is that when the Collector passed the final order dividing the Municipal area into different wards, he replicated the objection given by the local M.L.A. Ultimately, after considering the objections received and presumably after examining the same, the Collector passed the order referred to above.
5. The petitioners contend that the final division of the Municipal area into different wards suffers from grave infirmities inasmuch as the Municipal area has been divided into wards having unequal population. The petitioners have relied upon and the respondents have accepted the position that the division of the wards has to be done in accordance with the instructions given by the Government of Maharashtra in a circular dated 1st of March, 1965. Though this circular was issued before the Maharashtra Municipalities Act, 1965 came into force and probably in contemplation of the certain provisions coming into force on a future date both the petitioners and the respondents before us have accepted the position that the division of the Municipal area into different wards should be made on the basis of population as mentioned in this circular. Apart from this, the petitioners have contended, and we accept the said contention, that in the performance of the exercise under section 10 of the Municipalities Act is implicit the duty to divide a Municipal area into wards having equal populations. The equality of the populations may not be necessarily arithmetic but it must appear that in the formation of the wards the weightage that is to be given is necessarily to the population and not to any other factor. If, therefore, one ward contains population of 500 and another ward contains a population of 1,500, obviously the duty cast upon the Collector under section 10(1) of the Maharashtra Municipalities Act must be deemed to have been done improperly.
6. In the return filed to this petition, the obligation to divide the area into different wards in accordance with the principles enumerated in the circular mentioned above has been accepted on behalf of the respondent. It is, therefore, necessary to briefly refer to the guidelines issued by the Government while dividing a Municipal area into different wards. The Municipality should work out the ratio of the population per Councillor or seat by dividing the population in the Municipal area by the number of Councillors. In working out the number of elected Councillors, fractions should be ignored. As an example, it is mentioned that in a 'B' Class Municipality with a population of 25,620, the number of elected Councillors should be determined as 20 for the first 20,000 population and the population above 20,000 for which an additional seat would be admissible is 5,620. If one seat for a unit of 3,000 population is to be taken, then the additional seats that would be admissible will be 1.80. However, fractions have to be ignored and, therefore, for the additional population of 5,620 above 20,000 only one more elected Councillor would be provided. Thus the number of Councillors would be 21. The ratio of population per seat worked out as mentioned above should serve as a guide in dividing the Municipal area into suitable wards. Though it is not always possible in practice to constitute each ward in such a way as to abide strictly by that ratio, each ward should be made a compact and contiguous area. The population in each ward may differ 5% in case of 'A' Class Municipalities or by 10% either way in the case of 'B' and 'C' Class Municipalities from the ratio of population per seat worked out by dividing the population by the number of Councillors admissible. It is mentioned specifically that care should be taken to see that existing roads, streets, nallahas, rivers etc., form the boundaries of the wards unless their use as boundaries results in violation of dividing the wards on the basis of population with difference of 5% in the case of 'A' Class Municipalities or 10% in the case of 'B' and 'C' Class Municipalities.
7. That this is the obligation which has to be discharged is clear from the order fixing the final wards itself. This is to be found in Exhibit 'F' to the petition. Yeola Municipal Council is a 'C' Class Municipal Council. It has a total population of 28,343. The ratio of population per seat is stated to be 1090. 10% variation in the ratio of population per seat is permissible among the different wards. Therefore, 10% of 1090 is 109. Accordingly population of each ward should not be below 981 and should not be above 1199. We have now to find out whether this obligation of dividing the Municipal area into different wards in such a manner that no ward will have a population of less then 981 and more than 1199 has been discharged properly.
8. Fortunately, in the affidavit in reply to this petition a comparative table has been given disclosing the population in the different wards as per the original draft publication and the populations in the wards as per the final publication. We have gone through this table along with the affidavit to which this table is an accompaniment with the assistance of the learned advocates appearing before us. It is noticed that out of the 26 wards, in the case of 13 wards, the rule relating to the proper distribution of population among the wards has been given a go by. For example, in Ward No. 3 the population is 1,236. Similarly in Ward No. 4 the population is 1,213. In present Ward No. 18 and in present Ward No. 24 the population is much higher than the one permitted after allowing 10% variation. There are certain wards in which the population is less than the minimum permitted by the rule. By way of illustration we may mention that in Ward No. 8 the population is 900 whereas in Ward No. 24 as it is now constituted the population is 1,322. There is in present Ward No. 24 population of which is nearly 50% more than the population contained in Ward No. 8. There is thus large variation between the populations from ward to ward which is wholly inconsistent with the concept of more or less equal distribution of the Municipal area into different wards under section 10 of the Municipalities Act. A situation where nearly 50% of the wards show a population which is not in accordance with the obligation which has been accepted by the respondents is a serious one. It cannot be condoned on the ground that in dividing the Municipal area certain amount of discretion is always involved and in exercise of that discretion such anomalies are bound to occur. This is in fact what is stated on behalf of the respondents and especially by Mr. Devnani appearing for respondents Nos. 2 to 4.
9. Mr. Devnani also relied upon a judgement of this Court in Dagdu Vithoba v. State 19 Bom.L.R. 767. The facts of this case show that the Director of the Municipal Administration who had the duty of dividing the Municipal areas into different wards under section 10 had in fact divided the area on the basis of population. However, the division which was done on the basis of population resulted in the different wards having unequal number of voters. Such a division was challenged as being contrary to the provisions of the Municipalities Act in general and to the provisions contained in section 10 (1) of that Act in particular. After examining the provisions of the Act in the light of certain provisions of the Constitution, the Division Bench held that population can serve as a safe guide line while dividing the Municipal areas into wards. The delimitation of wards in a particular Municipal area on the basis of population could not be characterised as arbitrary or unreasonable. It was contended on behalf of the petitioner in that case that the division of the Municipal area into different wards on the basis of population alone has resulted in absurd consequence inasmuch as there was a fairly large variation in the number of voters in the different wards. Therefore, the division of the Municipal area on the basis of population alone should be struck down. The Division Bench rejected this contention and held that the division of the Municipal area into different wards on the basis of population was not founded on an unreasonable principle. It was further held that the Director had exercised his discretion correctly in fixing the boundaries of the wards on the basis of population and in adopting that basis. Having adopted a reasonable and recognised basis for carrying out the wards in the Municipal area, a certain amount of variation in the number of voters in the different wards was inevitable.
10. We do not see how this decision can be pressed into service by the learned Government Pleader for upholding the division of wards which is now seem to be done on the basis of population. A division of wards showing large variations of the population among the different wards cannot be said to be a division based upon population. A division of a Municipal area into different wards must result in the creation of wards having more or less equal population subject to the variation of 5% to 10% as mentioned in the circular referred to above. In the instant case, 13 wards have gone out of the rule which requires the population to be equally divided into wards with 10% variation. Thirteen wards out of twenty six cannot be said to be a small number. This has, in our opinion, resulted in a situation which is not contemplated at all by the exercise of power under section 10 of the Municipalities Act.
11. In the affidavit in reply filed on behalf of the respondents, an attempt has been made to explain why these anomalies have resulted. After referring to the table, to which we have ourselves made a reference earlier, it has been mentioned that while delimiting the wards the guidelines as to population have been strictly adhered to. However, in following the population ratio, 'it become difficult to follow the guidelines regarding the natural boundaries. At this stage it may be pointed out that the guidelines as to natural boundaries are to be followed as practicable as possible. While strictly adhering to the population ratio it was not feasible or practicable to abide by the guidelines regarding the natural boundaries. As far as possible natural boundaries have been followed except in about 4 wards'.
12. From this it is clear that the officer entrusted with the task of delimitation of wards sacrificed the principle of equality of population while trying to adhere to the natural boundaries as boundaries for the wards. This is clean contrary to the principles laid down in the circular. It has been specifically mentioned in the said circular that in determining the boundaries of wards, care should be taken to see that 'existing roads, streets, nallahs, rivers etc., from the boundaries unless their use as boundaries results in violation of the instructions contained in para 2(5)(a), (b) & (c)'. Clause (c) referred to in the portion extracted above relates to the division of the wards on the basis of equality of population with the permissible variation of 10% on either side. The obligation is, undoubtedly, to see that the boundaries of the wards should coincide with the roads, streets etc. However, while adhering to this principle if the principle of equality of population mentioned in Clause (c) is violated, then the principle regarding the natural boundaries has to be sacrificed and not vice versa. On the admission of the respondents themselves, unfortunately, this has been done, namely the principle of equality of population has been sacrificed to the principle of natural boundaries being the boundaries of the wards. This has been so stated in the affidavit itself. There is thus no difficulty in seeing that the authorities concerned have acted contrary to the specific directions given to them and even to the principle which is implicit in the duty to be exercised under section 10 of the Municipalities Act.
13. We may also briefly refer to certain averments made in the petition. In paragraph 16 of the petition, it has been mentioned that while reconstituting the new Ward No. 22, its boundaries were allowed to go through private property because by so doing about hundred Muslim voters could be annexed to this ward. According to the averments in paragraph 16 of the petition, these Muslim voters from Chaval Galli were brought into this ward in an unnatural manner by pushing the boundaries of the ward into private properties both in the direction of Chaval Galli as also in the direction of East. In reply to this averment, the officer who has filed the affidavit has stated as follows:---
'With reference to paragraph 16 of the petition, I submit that the Ward No. 22 was required to be reconstituted on the basis of population ratio and not on the basis of particular community as alleged by the petitioners. The contention regarding 100 Muslim voters has been annexed to this ward and this kind of balancing of communal votes is against democratic principles is against national integration and should be deprecated. I say in democracy communal feeling have no scope whatsoever. Democracy functions well in non-communal society. And it is in consonance with the spirit of secularism. I say that the draft Ward No. 19 has been renumbered as Ward No. 22 in final order. The present population of the said New Ward No. 22 is 1,149 which is below the permissible limit and within the ratio of population prescribed.'
There is no denial on behalf of the respondents of the averments in paragraph 16 of the petition. However, since we are finding that the entire division of the Municipal area into different wards itself is vitiated by the non-compliance with the requirement of dividing the Municipal area into different wards with more or less equal population, it is not necessary for us to examine this particular contention in any great details. Since the impugned order is being set aside in its entirety, the authorities, concerned will naturally look into this question again.
14. It has been suggested on behalf of the respondents that in this petition this Court should not interfere with the impugned order because the petitioners themselves have not come to the Court with clean hands. In this connection it has been mentioned to us that petitioners Nos. 3 to 5 are members of the Municipal Council which had unanimously recommended the draft proposal which was sent to the Collector for action under section 10. The said draft proposal itself contained irregularities against which the petitioners today are making complaint. The draft proposal contained irregularities of the type complained of by the petitioners today in respect of eight wards. If the petitioners themselves originally did not make any grievance of what they today regard as illegality or irregularity, it is not now open to them to complain about the same when ultimately the Collector has passed the order under section 10 of the Municipalities Act.
15. There is considerable substance in this grievance on behalf of the respondents. However, we must notice that apart from the three petitioners who were members of the Municipal Council at the relevant time, there are two other petitioners who can legitimately make a grievance about the legality or correctness of the ultimate order passed by the Collector. They were not, at any rate, parties to the resolution which forwarded to the Collector the draft which contained similar irregularities. Moreover, after the matter has come up before the Court and after the irregularity and illegality have been discovered by this Court, we do not think that relief should be denied to the petitioners on this ground. What is being done while this petition is being allowed is to set aside an action which is not supportable in law. The question of giving relief to one or the other petitioner also, in our opinion, does not arise. An executive action taken by a functionary under a statute passed by the legislature has been brought before the Court for being examined and after examining the same if this Court comes to the conclusion that action is not in accordance with law, it is perfectly legitimate in exercise of the jurisdiction of this Court under Article 226 of the Constitution to set aside the said order and to give appropriate directions, where necessary.
16. Before parting with this petition we cannot help referring to one aspect of the proceedings. The petition relates to an action taken by the Collector under section 10 of the Municipalities Act. A detailed procedure must have necessarily been followed before the Collector ultimately passed the order under section 10. Allegations of various type including some serious allegations have been made in the petition. It was normally expected, therefore, that some responsible person who had knowledge of the various steps taken before the order under section 10 was passed would be replying to the averments in the petition. We do not expect the Collector himself to file an affidavit, unless he desires to do so. But in his office some responsible officer must have been entrusted with the task of preparing all the preliminaries before the order under section 10 is passed. Such an officer would have been the proper person to file the affidavit in reply to this petition. We have already shown above how some serious allegations made in paragraph 16 of the petition have remained unrebutted. The person who has sworn the affidavit in reply in the instant case has been described as 'Muzzafur Hussein Asgar Ali Sayed, Sanjay Gandhi Yojna Tahsildar Collector's Office, Nasik'. In his two affidavits which are before us, it has not been mentioned as to how he is acquainted with the facts of the case. He has only mentioned that the entire affidavit is based 'upon the official record which I believe to be true and correct'. Such an affidavit can be prepared by any person in the office of the Collector. This is hardly the way in which the allegations made in a matter of this type should be met.
17. In the result, the petition is allowed. The order dated 28th of March, 1983 passed by the Collector of Nasik under section 10(1) of the Maharashtra Municipalities Act, in so far as it relates to the Yeola Municipal Council, is set aside. The Collector is free to pass a fresh order under section 10 (1) of the said Act after following the regular procedure in accordance with law.
There will, however, be no order as to costs in this petition.