S.H. Sheth, J.
1. This petition has been filed by eight petitioners who are voters at the elections to Ahmedabad Municipal Corporation Notification dated March 20, 1980 issued by the Government of Gujarat is challenged by them. It relates to the division of two existing wards and the reallocation of seats to them.
2. Under Sub-section (2) of Section 5 of the Bombay Provincial Municipal Corporations Act, 1949, the State Government has got the authority to decide how many councillors shall be elected from each of the election wards. Under Sub-section (3) of Section 5, the State Government has the power to specify the number and boundaries of the wards into which the city shall be divided for the purpose of election of the councillors and to determine the number of councillors to be elected from each ward.
3. What the State Government by issuing the impugned notification has done is as follows. The Municipal Corporation shall consist of 105 councillors elected at ward elections. Secondly it has specified 36 wards into which the city of Ahmedabad shall be divided for the purpose of ward elections of councillors and has defined boundaries of each ward. Thirdly it has specified number of councillors to be elected from each ward. Fourthly, it has provided for reservation of seats for the scheduled castes as well as for the scheduled tribes. It is a common ground between the parties that except dividing the Wadaj ward into Wadaj East and Wadaj West and Paldi ward into Paldi East and Paldi West, no other change has been effected in the constitution of the election wards. In other words, other wards remain as they were at the last general elections to the Municipal Corporation which were held in December 1975. Another change which the State Government has made is to allocate three seats to Wadaj East and two seats to Wadaj West totalling at five as against six (including one reserved for scheduled castes) which were allocated to the composite Wadaj ward earlier. This one seat which has been taken away from the two Wadaj wards now, which earlier constituted one Wadaj ward, appears to have been added to Gandhigram ward which earlier had four seats allocated to it as against five DOW. These two changes which have been effected by the impugned notification are challenged by the petitioners in this petition.
4. Before we proceed to deal with the merits of the case and the contentions which have been raised on behalf of the petitioners, it is necessary to note that this litigation is in the real sense of the term, a luxury litigation. We say so because division into four of the two wards out of 34 election wards is hardly going to effect the political fortunes of any political party. Secondly it is difficult to imagine that allocation of five seats to Wadaj ward now as against six which were allocated to it earlier and the apparent allocation of one more seat to Gandhigram now, will in any manner, tilt the balance in the fortunes of political parties at the next general election to the Ahmedabad Municipal Corporation due to be held in ordinary course in December 1980.
5. In April 1975, after which the last general elections to the Ahmedabad Municipal Corporation were held, Ahmedabad city was divided into 34 election wards. 105 councillors were required to be elected at these 34 ward elections. Out of 105 seats, 92 were general seats and 13 reserved for the members of scheduled castes. In October 1977, a proposal was placed before the Standing Committee of the Corporation to reconstitute election wards in such a manner that no election ward shall have more than three seats. Before considering this proposal on merits, the Standing Committee invited the Municipal Commissioner to make his report on the subject. On 3rd January 1978, the Commissioner submitted his report to the Standing Committee. In his opinion, it was not opportune to readjust the boundaries of election wards as was proposed. On 4th August, 1979, the Municipal Commissioner drew the attention of the Corporation to the decision of this Court in Rameshchandra Ramanbhai Patel and Another v. Collector, Kheda and Ors. 20, G.L.R. 191, and requested the Corporation to take a decision in the matter of delimitation of wards in the light of the said decision. On 3rd September 1979, the State Government issued guidelines in order to carry into effect the decision of this Court in Rameshchandra's case (supra). In October 1979, the Commissioner told the Corporation that since elections were due to be held in ordinary course in December 1980, there was no time left to readjust or redefine boundaries of 34 election wards in terms of the principle laid down by this Court in Rameshchandra's case (supra). On 27th October 1979, the Standing Committee passed a resolution in which it was stated that the boundaries of election wards which had been fixed in 1975 were more or less consistent with the guidelines issued by the Government except in respect of three wards, Wadaj, Maninagar and Gandhigram. However, the Standing Committee was of the opinion that all the election wards as they existed earlier should be maintained. Only a small and insignificant change which the Standing Committee recommended was that Dani Limda ward should be given two seats in place of one and that the total strength of the Corporation be increased to 106. On 29th November 1979, the Corporation approved that recommendation. It may be stated that power of fixing the total strength of the Corporation and increasing or decreasing the seats allocated to a particular ward rests with the Government under Section 5 of the said Act. On March 20, 1980, the Government of Gujarat issued the impugned notification by which in effect and substance, it made two modifications which have been noted above.
6. Mr. H.B. Shah who appears on behalf of the petitioners has raised before us three contentions:
(1) The impugned notification in so far as it divides Wadaj and Paldi wards into two each is arbitrary, discriminatory mala fide and void;
(2) Reduction in the number of seats allocated to composite Wadaj ward (now divided into two) is in violation of 'one man one vote' rule laid down by this Court in Rameshchandra's case (supra), and is therefore, arbitrary, discriminatory and void.
(3) The impugned notification itself is violative of the principle laid down by this Court in Rameshchandra's case (supra) and the guidelines issued by the State Government and, is therefore, arbitrary, discriminatory and void.
Though Mr. Shah has framed these three contentions, we may at the outset state that the third contention is too general and vague in character and does not turn upon any particular part of the impugned notification. In the course of his argument, Mr. Shah in support of the (Contentions which he has raised, mounted two-fold attack against the impugned notification. His first attack was that division of Wadaj and Paldi wards into two each is arbitrary, discriminatory and void and his second attack was that the reduction of seats allocated to composite Wadaj ward from six to five which have now been allocated to Wadaj East and Wadaj West is also arbitrary, discriminatory and void. It is not in dispute before us, and Mr. Shah has conceded it, that if we answer these two contentions, there is nothing else in the petition which will remain to be answered by us.
7. We first take up the contention relating to the division of Wadaj and Paldi wards into two each whereas prior to the impugned notification, there were 34 wards. We have now, as a result of the impugned notification, 36 wards. As stated above, this increase in the number of ward has taken place because ward No. 15-Wadaj-which existed prior to the issuance of the impugned notification has now been divided into Wadaj East and Wadaj West. Government took a decision to divide these two wards into four, it did something which was arbitrary and capricious. Mr. Shah who appears on behalf of the petitioners has argued that in dividing these two wards into four, the State Government has taken into account, for the purpose of defining their boundaries, railway line which passes through them. According to Mr. Shah, it was not absolutely necessary for the State Government to take this geographical mark into account. It could have as well taken any other geographical mark such as roads. If several geographical marks are available for defining boundaries of election wards and if the State Government selects one of them, as it ordinarily should, we cannot say that what the State Government has done by adopting a particular geographical mark is arbitrary and capricious. It is open to the State Government, is its discretion, to adopt any well defined geographical marks which are available for defining boundaries. Therefore, so far as division of Wadaj and Paldi wards into four wards is concerned, the challenge which the petitioners have raised is very weak and incapable of being accepted by this Court. Therefore, in so far as the impugned notification divides Wadaj ward into two and Paldi ward into two and increases the number of election wards from 34 to 36, we find nothing wrong. The first part of the challenge which Mr. Shah has raised, therefore, fails and is rejected.
8. We now turn to the second part of the challenge which the petitioners have raised. Before we examine the legal aspect, it is necessary to note a few facts.
9. Prior to the issuance of the impugned notification, six seats including one reserved for the scheduled castes were allocated to Wadaj. It bad then the scheduled caste population numbering 5456 and the scheduled tribes population numbering 746. As a result of the impugned notification, three seats have been allocated to Wadaj East and two seats have been allocated to Wadaj West, totalling at 5. In other words, whereas the composite Wadaj Ward as it existed prior to the issuance of the impugned notification had six seats including one for the scheduled castes, two Wadaj Wards, into which the pre-existing Wadaj ward has been divided, have now 5 seats. There is, therefore, reduction of one seat. That seat appears to have been added to Gandhigram ward. Prior to issuance of the impugned notification, Gandhigram had four seats with one reserved for the scheduled castes. Five seats have been allocated to it now with none reserved for the scheduled castes. Where one seat which was reserved for the scheduled castes and which was allocated to the composite Wadaj ward prior to issuance of the impugned notification has gone is not the question which we are required to answer. It is not a matter of controversy before us. Mr. Shah has very strongly contended that the reduction of one seat in Wadaj ward which is now divided into two and increase of one seat in Gdndhigram ward militate against one man one vote rule enunciated by this Court in Rameshchandra's case (supra). In order to make good his contention, he has relied upon the total strength of voters in each of these two wards. In order to justify what the State Government has done, the State Government has relied upon the population figures of these two wards as determined by 1971 census. It cannot be gainsaid that in the fast developing city like Ahmedabad, 1971 census figures in 1980 are bound to be unreal and out of date. However, if the law requires that 1971 census figures ought to be taken into account, they must be taken into account. The court has no jurisdiction to improve upon the statutory provision in that behalf. What the State Government has done is to divide the total population of the City of Ahmedabad as determined by the 1971 census by 105 which is the total strength of the Corporation and has allocated seats to different election wards in the proportion of their population. It has also been averred on behalf of the State Government that where as a result of the application of the said formula, an election ward is entitled to have seats varying between 2. 5 and 2. 9, three seats have been allocated to it and where it is entitled to less than 2. 5 but more than 2, two seats have been allotted to it. This formula, according to the State Government, has been applied to all the wards with certain marginal changes in order to complete allocation of 105 seats to 36 election wards. It is not in dispute before us that if 1971 census figures are taken as the basis of allocation of seats to different wards, what the State Government has done cannot be said to be arbitrary or wholly wrong. It is also not much in dispute that if the size of population, not as determined by 1971 census but as reflected by the number of voters registered in 1980, is taken into account, what the State Government has done will have little justification. It cannot be gainsaid that if guidelines issued by the State Government are applicable they must be applied.
10. Let us, therefore turn to the decision of this Court in Rameshchandra 's case (supra) where the principle of 'one that it was a case been evolved by this Court. It is necessary to note that it was a case under the Gujarat Municipalities Act, 1963. Award where such a dispute arose in Rameshchandra's case (supra) was governed by the Gujarat Municipalities Act, 1963, Ahmedabad city is not governed by that Act. It is governed by the Bombay Provincial Municipal Corporations Act, 1949. What has been laid down by this Court in Rameshchandra's case (supra) is as follows:
One man-one vote rule means that as nearly, as is practicable, one man's vote at an election is to be worth as much as another's vote. Therefore, when members of an elected body are chosen from separate constituencies, each constituency must be established on the basis which will ensure, as far as practicable, that equal number of people vote for proportionately equal number of representatives. This principle has been affirmed and beyond doubt established and enforced in the United States of America.
11. In that decision, reference has been made to a few American citations on the subject. After having reviewed American case law on the subject, this Court has made the following observations on the subject:
The municipal government performs important public functions within the area under its jurisdiction. The functions which it performs have sufficient impact throughout the municipal borough and on the imhabitant population residing therein. Each and every soul inhabiting the borough is not entitled to vote. Having regard to the qualifications and disqualification which the statute prescribeds, some out of those souls will be eligible to be entered in the voters' list and will be qualified for voting. When such qualified voters' vote, they speak for and on behalf of the population of the ward of which they are residents and their votes are the expression of the will not of such population. The inhabitant population and not the voting population must be the determinative factor.
12. This principle has been very strongly relied upon by Mr. Nanavati. While making distinction between the voting population and inhabitant population, it has been observed by this Court that, in a ward, the number of voters would depend upon numerous variable factors. It may be a matter of accident, circumstances or design that one ward may have a larger number of voters in proportion to the population that the other has. This Court has made in that decision is that apart from the imbalance resulting from such accidents or circumstances or designs, to link one man-one vote with the voting population may lead to what is known as 'gerrymander'. A voters' list, as per example, can be so mainpulated by those with means and in power as to secure unfair advantage by disproportionate, representation at the election. Such a danger shall be obviated if the inhabitant population ascertained from the authentic date is made the foundation of the 'one man-one vote' rule.
13. After having reviewed American decisions on the subject, this Court has observed that in the United States of America, one man one vote rule is linked with the inhabitant population rather than with the voters. One of the contentions which was raised in that case was that even if inhabitant population is required to be taken into account, its strength must be determined on the available data at or about the time of election and not on the basis of data supplied by the last preceding census howsoever attractive it may be. That argument was rejected by this Court as illfounded because in the opinion of this Court, it would strike at the very root of the principle of 'one man-one vote' which was so arduously sought to be sustained by the petitioners in that case. It appears from the subsequent observation made by this Court in para 31 of the report that if inhabitant population at the time of election were directed to be taken into account it might lead to the necessity of holding a mini census. Unless the statute so provided, mini-census for such a purpose cannot be ordered to be taken. It has next been observed by this Court that to disregard census as the determinative factor would be very hazardous because, in absence of census figures, no authentic data would be available for judging the strength of the population.
14. The hazardous probability which may result from emission to take into account authentic figures supplied by the census has been fully dealt with by this Court in that decision by referring to the evil of ghost-cards. Then, in that context, this Court has referred in that decision to Articles 81 and 170 of the Constitution and to certain provisions of the Gujarat Panchayats Act and the Gujarat Municipalities Act. We shall be shortly referring to all those provisions. Statutory scheme which emerges out of certain provisions of the Gujarat Municipalities Act and the Gujarat Panchayats Act has thereafter been discussed by this Court in that decision. It has further been observed by this Court that in such a matter, the State Government must act fairly, bona fide and reason ably in performing this function and it must be guided by the overriding consideration of 'one man-one vote' rule, subject to the reservation of seats for women and the scheduled castes and the scheduled tribes for which specific provisions have been made in the statute. Therefore, population of each ward as determined by the last preceding census will have to be taken into account while allocating seats amongst different wards to ensure that, as far as practicable, the various seats are distributed proportionately on the basis of the strength of inhabitants in each ward. This court has thereafter struck a note of caution and stated that, in the matter of application of this rule, the ordinary or casual increase or decrease of population in different wards will have to be disregarded at the mid-census elections. The most significant observation which this Court has made thereafter is that there is nothing in the provisions of the Gujarat Municipalities Act which either expressly or by necessary implication permits the adoption of another course. Paragraph 37 of the report tries to render flexible the rigidity of the rule which it has laid down in the preceding paragraphs. Therefore, the observations made in paragraph 37 show that this Court should not be understood as laying down that, under no circumstances while delimiting wards and allocating seats amongst different wards, it will be open to the State Government to take into account any obvious or apparent change or shift in population due to special circumstances. These observations clear the cloud and soften the rigidity of the rule. If there are any special circumstances such as an obvious and apparent change or shift in population, the last preceding census figures may be ignored. What may be such special circumstances have been illustrated by this Court in that decision. It is not necessary to refer to those illustrations. What are special circumstances depend upon the facts of each case. The context in which the principle of 'one man-one vote' has been laid down by this Court in its very lucid and learned judgment is clearly exposed in paragraph 41 of the report in which the position which emerged upon the true construction of Section 7 of the Gujarat Municipalities Act has been stated. Para 42 of the report opens with the following observation:
The view which we are taking as aforesaid is not only warranted by the scheme of the enactment and the language employed but also by the object and purpose of the enactment. Besides, the view also accords with reason and justice.
Therefore, even though this Court has heavily relied upon what obtains in the United States of America, in so far as 'one roan-one vote' rule is concerned, it has been injected into by the statute through the instrumentality of Section 7 of the Gujarat Municipalities Act. Mr. Nanavati who appears on behalf of the State was in error in submitting that enunciation of 'one man-one vote' rule is independent of the statutory provision with which this Court was concerned in that case and that it stands on its own footing and that even when there is no statutory provision which warrants the application of that principle, it roust be applied.
15. In order to appreciate the context in which this principle has been laid down, it is necessary to make a brief reference to certain provisions of the Constitution and of Gujarat Municipalities Act and the Gujarat Panchayats Act. We shall shortly show that the constitutional scheme in this behalf in respect of House of People and State Legislatures and the statutory scheme in respect of Municipalities and Panchayats of the State of Gujarat are different from the scheme in respect of a Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949. Article 81 of the Constitution provides for the composition of House of People. Clause (1) of Article 81 specifies total number of representatives to be elected by election from territorial constituencies in the State and the total number of representatives to be elected from Union territories. Clause (2) of Article 81 is material for the purpose of our case. It provides as follows:
For the purposes of Sub-clause (a) of Clause (1):
(a) there shall be allotted to each State a number of seals in the House of the people in such manner that the ratic between that number and the population of the State is, so far as practicable, the same for all States.
The expression 'population' used in this clause has been defined by Clause (3) of Article 81 which reads as under:
In this Article, the expression 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census.
It is, therefore, clear that the concept of population so far as Article 81 is concerned has been tightly tied down to 1971 census figures. Therefore, in case of any elections between 1971 and 2001, it will not be open to the appropriate authority to depart from the census figures of 1971.
16. Let us now turn to Article 170 which provides for the composition of the Legislative Assemblies. Clause (!) of Article 170 specifies the maximum number of seats which a State Legislature may have and the minimum number of seats which a State Legislature may have. Clause (2) of Article 170 which is relevant for the present purpose reads as follows:
For the purposes of Clause (I), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State.
The expression 'population' has been defined in the Explanation appended to Article 170 in the following terms:
Explanation: In this clause, the expression 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published.
The proviso to this Explanation is in the same terms as the proviso to Clause (3) of Article 81. We, therefore, find that so far as the State Assemblies are concerned, delimitation of constituencies has also been tightly tied down, for the purpose of the present case, to 1971 census figures. It may also be noted in this context that Articles 81 and 170 specify the maximum and where necessary, minimum number of members who shall constitute either the House of People or the State Legislature as the case may be.
17. Section 6 of the Gujarat Municipalities Act, 1963 provides in the matter of constitution of a municipality as follows:
(1) Every municipality shall consist of elected councillors. (2) The number of such councillors shall be:
(a) 25, if the population of the municipal borough does not exceed 50000,
(b) 35, if the population of the municipal borough exceeds 50000 but does not exceed 100000.
(c) 40, if the population of the municipal borough exceeds 100000 but does not exceed 200000, and
(d) 51, if the population of the municipal borough exceeds 200000.
Sub-section (3) provides for reservation of seats for women, scheduled castes and scheduled tribes. Clauses (b) and (c) of Sub-section (3) make a reference to the population of the scheduled castes and the scheduled tribes. The expression 'population' used in Section 6 has been defined by Section 2(20) in the following terms:
'Population' in relation to a municipal borough means the population thereof as ascertained at the last preceding census.
A conjoint reading of Sections 6 and 2(20) makes abundantly clear the propositions which emerge therefrom. Firstly, the statute itself specifies the number of councillors to be elected. The State Government has no discretion to vary that figure in case of any particular municipality. Secondly it links the number of councillors to be elected with the population of the municipal borough as determined by the last preceding census. It was in the context of this provision that this Court decided Rameshchandra's case (supra).
18. Let us now turn to the Gujarat Panchayats Act, 1961. Section 12 provides for the constitution of a Gram Panchayat. Sub-section (1) of Section 12 may appropriately be quoted:
(1) A gram panchayat shall, subject to the provisions of Sub-section (5), consist of such number of members (including the Sarpanch) cot less than 7 and not more than 15 as the competent authority may, subject to the general order made by the State Government in regard to the allocation of number of sea's to different grams having regard to the varying extent of population therein determine, and such members shall be elected from amongst the qualified voters of the gram.
This provision specifies the maximum and minimum number of members to be elected and also provides that the population shall be the basis for the purpose. Sub-section (1) of Section 13 makes a similar provision in respect of Nagar Panchayats and two concepts which are present in Sub-section (1) of Section 12 are also present in Sub-Section (1) of Section 13. In order to avoid repetition, we do not quote Sub-section (1) of Section 13. Sub-section (3) of Section 14 contains similar and identical provision in regard to taluka panchayats. Both the aforesaid concepts are present in that subsection. Sub-section (3) of Section 15 makes a similar provision in regard to district panchayats. Both the aforesaid concepts are present in that sub-section. Sub-section (23) of Section 2 defines population in the following terms:
'Population' in relation to gram, nagar, taluka or district, means the population thereof as ascertained at the last preceding census.
It is clear, therefore, that the constitution of a panchayat and delimitation of its constituencies for the purpose of election are linked up with the population as determined by the last preceding census.
19. We do not have a similar provision in the Bombay Provincial Municipal Corporations Act, 1949 nor do we have it in the election rules contained in Chapter I in Schedule 'A' to the Act. Therefore, whereas in case of the House of People and State Assemblies under the Constitution and in case of municipalities and panchayats under the appropriate State laws, population as ascertained at the last preceding census is the determinative factor, it is not so in the case of Corporations constituted under the Bombay Provincial Municipal Corporations Act, 1949. It was in the context of the relevant statutory provisions contained in the Gujarat Municipalities Act, 1963 that this Court laid down the principle that 'one man-one vote' rule shall be applied in terms of the population as deter mined by the last preceding census.
20. It cannot be gainsaid that where there is such a statutory provision, it can never be ignored. Yet, in para 37 of the report in Rameshchandra's case (supra), this Court has made an exception where there are special circumstances. In our opinion while applying 'one man-one vote' rule, it cannot be gainsaid population always furnishes the best basis for delimitation of constituencies. To that, extent, the principle laid down by this Court in Rameshchandra's case (supra) under the Gujarat Municipalities Act, 1963 is applicable to a case under the Bombay Provincial Municipal Corporations Act, 1949. But is there any justification or warrant for holding that population means, in the context of a Municipal Corporation, population as determined by the last preceding census? We find no justification or warrant for taking that view. The legislature has made a clear departure in case of a municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949. We cannot, therefore, be oblivious of this departure and hold that the provisions of the Bombay Provincial Municipal Corporations Act, 1949 should be interpreted as provisions of the Gujarat Municipalities Act, 1963 or for that matter, provisions of the Gujarat Panchayats Act, 1961, have been interpreted. We are, therefore, of the opinion that the decision of this Court in Rameshchandra's case (supra) is applicable to municipalities constituted under the Gujarat Municipalities Act, 1963 and to panchayats constituted under Gujarat Panchayats Act, 1961 and cannot be made applicable proprio vigore to a municipal corporation governed by the Bombay Provincial Municipal Corporations Act, 1949. It is needless for us to say that the State received light from the decisions of this Court in Rameshchandra's case (supra). It appears that no one at the State Government level thought to find out whether what was laid down by this Court in Rameshchandra's case (supra) under the Gujarat Municipalities Act, 1963, would be applicable to the case of a municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949. It further appears to us that they issued guide-lines without being conscious of the difference between the two statutes and went ahead with enforcing it.
21. What then is the rational principle which must be applied to a municipal corporation in such a situation? Statute provides for no fetters. Bounds of rationality upon which we can draw are unlimited. We are, therefore, of the opinion that so far as the basis for delimitation of constituencies in this case is concerned inhabitant population is the best criterion. However, it does not necessarily mean that it must be population, in case of a municipal corporation, as determined at the last preceding census particularly when those figures have become stale, real and out of date. Mr. Nanavaty who appears on behalf of the State Government, rightly, cautioned us against holding that in order to determine the real size of the population of a ward, the Corporation should hold a minicensus. We do not think, that we can fall prey to such a proposition. To accede to such a proposition is to legislate. It is beyond our bounds. Therefore, when midcensus general elections are held, what shall be the criterion for determining population in an election ward for the purpose of allocation of seats? If there are obvious and discernible indications to determine what population it has, it will be unreal for the State Government to ignore it. If there are no obvious and discernible indications of increase in the size of the population, of award, it may resort to the figures provided by the last preceding census. In the instant case, we have reliable data to find out population in the Wadaj ward. It is not only reliable but authentic. Voters' list of Wadaj ward prepared by the Corporation itself unfailingly indicates that its population has sizably increased. As determined by the last census figures of 1971, Wadaj West had a total population of 26, 786, while Wadaj East had a total population of 49, 354 persons. They total at 76, 139. In some other part of the record the total population of the composite Wadaj ward as determined by 1971 census has been shown at 76, 229. It does not make much difference. The number of voters enlisted in Wadaj East in 1980 are 51, 264 and in Wadaj West, they are 32, 340, totalling at 83, 604. How unreal 1971 census figures are is shown by the fact that whereas in 1971, the total population of Wadaj was 76, 139, the total number of voters in that composite ward in 1980 is about 84, 000. Where there is such obvious material available to determine the size of population, in our opinion, it cannot be ignored. Even if we are required to apply the principle laid down in Rameshchandra's case (supra) the size of the population as reflected by an unusual increase in the population of voters later, can be taken into account. This is a special circumstance. According to 1971 census, composite Wadaj ward had a total population of 76, 229 and in 1975, it had 50, 845 voters. The ratio which these figures work out is that the voters constituted two-thirds of its population. In 1980, the total number of voters in the composite Wadaj ward (now Wadaj East and Wadaj West) is 83, 825. If the ratio of two-thirds is taken to be correct for the sake of argument, in 1980, it must have a population in the neighbourhood of 1, 26, 000/-. Such an abnormal increase also militates against reduction of seats allocated to Wadaj ward in 1975 when it had much less population. It appears to us, therefore, that allocation of total number of five seats to Wadaj East and Wadaj West is not rational and appears to be arbitrary. Therefore, the impugned notification to that extent is bad cannot be sustained in law.
22. We may in this context note that there is no statutory ceiling of councillors to be elected to the Corporation. Section 5 of the Bombay Provincial Municipal Corporations Act, 1949 leaves ceiling of the councillors to be fixed by the State Government from time to time by issuing notification in that behalf in the official gazette. This provision under Section 5 is unlike its counterparts in the Gujarat Municipalities Act, 1963 and the Gujarat Panchayats Act, 1961 where the statutory ceilings have been fixed. It is needless for us to say that on the principle which we are applying to Wadaj ward, each ward is entitled to have so many seats at its population reflected by voters registered in 1980, warrants we may add that it shall be open to the State Government to revise allocation of seats to different election wards on the strength of its population in 1980 as reflected by the increase or decrease in the number of voters in the ward. Though we do not lay down as a rigid rule, we feel that voters in a ward will ordinarily constitute two-third of total population.
23. In the result, for the reasons stated in this judgment, the petition partly succeeds. It is declared that allocation of five seals as between Wadaj East and Wadaj West which constituted composite Wadaj ward prior to the impugned notification is null and void. That part of the impugned notification is, therefore, declared to be void and struck down. It shall be open to the State Government to reallocate seats to Wadaj West and Wadaj East on the basis of the principle which we have laid down or to reallocate afresh scats to wards in the light of the principle which we have laid down. It is needless for us to say that we see no reason to interfere with the constitution of 36 wards which have been delimited in the impugned notification. That part of the notification, therefore, is upheld. It shall also be open to the State Government to revise and refix the total number of councillors to be elected from 36 wards which have been constituted by the impugned notification.
24. Rule is made partly absolute with no order as to costs in the facts and circumstance of the case. A writ of mandamus shall issue directing the respondents to desist and forbear from implementing that part of the impugned notification which we have struck down.