D.L. Mehta, J.
1. Learned Counsel for the parties have prayed that the writ petition may finally be disposed of at the admission stage. The prayer is accepted.
2. The State Government purporting to Act Under Section 9 of the Rajasthan Municipalities Act, 1959(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 casts. Thereafter, by notification dated October 14, 1982 published in the Rajasthan Rajpatra Part VI (ka), the State Government Under Section 4 of the Act extended the territorial limits of the Ganganagar Municipal Council. After extention of the territorial limits of Ganganagar Municipality, the Collector, Sri Ganganagar submitted proposals to the State Government for fresh delimitation of words 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 aganst the draft proposals, the State Govt. has published an order (Ex. 1) Under Section 4(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, Sri Ganganagar issued a notice (Ex. 2) dated January 3, l983 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 Schedule 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 been adopted as 22,782 and that the total population of the members of the scheduled 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 beteen 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 Section 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 Section 9(2) of the Act. In the writ petition, the petitioner has prayed that a direction or order be issued quashing delimitation of the ward made by the Government vide order (Ex- 1) dated December 4, 1982 and that Sections 9(2) and 14(1)(b) of the Act be declared as void.
6. Mr. R.P. Dave, learned Deputy Govt Advocate has invited my attention to para 15 of the reply and has submitted that as per Section 13(2) of the Act, the representation of each ward should, as far as possible, be in the same proportion as the total number of seats for the Municipality bear to its population; that the Secretary to the Government, Election Department, Jaipur had by letter No. F. (2)(1) M/Elec/350 /82 dated September, 1982 issued instructions that in order to ensue compactness of the wards, the population in each of the ward could be 10% less or 10% more than the average population figure, He has further submitted that the average population per ward is 3151. In view of the aforesaid direction of the Government, the population in a ward could range between 2836 persons to 3466 persons. According to the learned Deputy Government Advocate out of the 40 wards, there are only 4 wards in which the population is more than 10% over the average population but in each of the case, as will be clear from the below mentioned figures, the divergency is negligible:
Ward No. Total Pop. 10% above the % above the average
average population population 10% figure
6 3472 10 18% 0.17%
10 3508 11.3.% 1.21
16 3510 11.39% 1.26%
33 3472 10.18% 0.17%
Learned Deputy Govt. Advocate further submits that similarly out of these 40 wards, there are only two wards in which more than 10% below the average population figure is and it will be clear from the figures below mentioned, the deviation is negligible.
Ward No. Total Pop. Below % the %below the average
average population pop. less 10% figure.
13 2711 13.96 4.4
40 2606 17.29 8,11
Learned Deputy Govt. Advocate submits that the delimitation is not against the provisions of Section 13(2) of the Act and the deviation from the average population figures is negligible and is justifiable in view of the expression 'as far as possible' used in Section 13(2) of the Act.
7. The State Government vide Ex. R.1 has issued the Circular dated September 27,1982. the abstract of which is as follows:
Before preparing the ward proposals, it will be necessary to work out the average population per seat and shown, in proforma 'B'. For example in a Municipality where the population is 10,000 and 10 seats the average population per ward will be 1000. You may go upto 900 i.e. 10 percent less on the lower side and upto 1100 i.e. 10 percent above on the higher side in order to ensure compactness of the ward.
By addition of the area, the population has been increased by 2346, the reference has been given in Ex. R. 2. Out of this population, 29 percent is the population of the scheduled caste.
8. Learned Counsel for the petitioner has submitted that the authorities have committed a mistake even in ascertaning the population of the extended area which is evident from Ex. R. 2 read with Ex. R, 4. He has further submitted that from the perusal of Ex. R 4, the notification dated October 14,1982, it is clear that on the western side, the extended area includes Chak No. 6-z and Murabbas No. 100,110,119,125,135 and Chak No.6-ZA etc. and that from the perusal of Ex R. 2 it is further clear that while considering the increased population, the extended area referred to in Ex, R. 4 relating to Chak No. 6 Z and others have not been considered at all and no figures have been collected for the purpose of delimination of the wards. Learned Counsel for the respondents could not give any satisfactorily explanation about the submissions made by the learned Counsel for the petitioner. It is No. on record that what is the population of the area of Chak No. 6-Z and 6-ZA.
9. Learned Counsel for the petitioner has challenged the vires of Section 9(2) of the Act which is as under:
9(2) In so fixing the total number of seats for a Board, the State Government shall specify the number respectively of general seats and of seats reserved for members of the scheduled castes or for members of the scheduled tribes or for both as the State Government may in each case determine
The persons of scheduled castes and scheduled tribes are down trodden persons and they have been exploited by the haves. Every citizen has a equal right to develop and the right should be effected on the persons who are down trodden belonging to the scheduled castes and scheduled tribes. Special reservation has been provided in the Constitution and in the light of the said reservation, if the State Govt. provides the reservation, there is nothing wrong in it and I do not find any force in the submission made by the learned counsel for the petitioner about the vires of Section 9(2) of the Act. I also do not find any force in the submissions made by the learned Counsel for the petitioner about the vires of Section 14 of the Act.
10. Section 13 of the Act provides for the division of the Council into wards. Section 13(2) of the Act provides that the representation of the each ward shall be on the basis of population of that ward and shall, as far as possible, be in the same proportion as the total number of seats for the Municipality bear to its population.
11. I have given the considered thought about the submissions made by the learned counsel for the parties in the matter of the division of Municipal council into wards. The Legislature in its wisdom has rightly used the words 'as far as possible' in Section 13(2) of the Act. The population of the ward can be one of the main foundation for the division of the Municipal Board/Council into wards. But at the same time, the compactness of the area will have to be taken into consideration. The Legislature also wanted that the area should be compact as well as the representation of each ward should be on the basis of the population of that ward and every ward should bear as far as possible the same proportion as the total number of seats for the Municipality bear to its population.
12. Learned Counsel for the respondents have submitted that alternative remedy is open and the petitioner has not challenged the constitution of the wards when the objections were invited.
13. The question of alternative remedy came up for consideration before this Court in Qurabali v. Govt. of Rajasthan AIR 1960 Raj. 132 and it was ruled as follows:
Where the local limits of an existing Municipal Board are sought to be altered, but they have not been altered by a competent authority and in this state of affairs the Municipality goes to the polls and elects its members, then it is not the duly delimited Municipality which has gone to the polls but a different body and the error is so fundamental that it is not an error merely in the holding of an election but something which goes to effect the very constitution of the Municipality in the eye of law. Further where an improperly constituted Municipality is taking inhabitants living outside its property fixed limits, such a question is one which is essentially separate from and independent of the electoral process and cannot properly form the basis of an election petition. Every substantal error made in violation of the provisions of the Act may not be capable of being challenged before an Election Tribunal although it forms a preliminary stage in the process of the election. In such a case the error can be corrected Under Article 226 of the Constitution.
I do not find any force in the light of the judgment referred to above in the submissions made by the learned Counsel for the respondents that the writ petition does not lie.
14. The question relating to the delimination 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. It is, however, well settled that Article 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 malafide interest to defeat the interest of certain mumbers of a caste, the High Court would not be slow to interfere. Reference in this connection may be made to Anop Chand Ghanga and ors. v. The State of Rajasthan (2).
15. 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 propositions laid down in Anop chand's 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 foundat on is laid down to show the act of the executive as arbitrary, discriminatory and malafide. 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. As stated above, I am of the view that the propositioas laid down in the above referred case is fully applicable in the instant case also. From the perusal of the schedules I and II it is apparent that the order has been passed mechanically. The State Govt. has admitted that the figures given in Schedules-I and II are correct. In Schedule-I, the total population of Ward No. 28 has been shown as 2844. In Schedule-II, the total number of voters in Ward No. 28 has been shown as 3514. Even, at the time of the arguments, it was pointed out to the learned Counsel for the petitioner that how the number of voters can exceed in such large number to the total number of the population, from the perusal of Schedules I and II, it is clear that strenth 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 50 per cent of the total population. One cannot imagine that the number of voters will exceed the total population of the ward. From this uncontrover ted and admitted fact, it is evident that the delimitation has been done without the application of the mind at all.
16. Even otherwise, if we take Ex R. I as the basis for the purpose of delimitation of the ward read with Section 13(2) of the Act, even then there is a clear non compliance of Ex. R. 1, the order dated September 27, 1982 passed the State Govt. It has been admitted by the respondents in their reply that in ward No. 40, the total population is 2606. It has also been submitted by the respondents in the reply that the average population per ward is 3151. In para 15 of the reply it has been shown that in ward No. 40 the population is 17.29 per cent below the average population. It his also been shown that in ward No. 13, the total population is 2711 and which is 13 96% below the average population The respondent State has also given figures of Wards No. 61,016 and 33 and has tried to show that the population in these wards is slightly above the average population. In ward No. 16, the population is 11.39 percent above the average population.The respondents in their reply have not shown anywhere that what are the reasons for such a variance. The circular Ex. R. 1 issued by the State Government empowers the authorities concerned that the authorities may go upto 10 percent above on the less on the lower side and upto 10 percent higher side, in order to ensure the compactness of the ward. Thus, taking the higher side and the lower side together in to consideration, there can be a variance upto 2 percent. The respondents themselves have admitted that in Ward No. 40, the population is 17. 29 percent and in Ward No. 13, the population is 13.96 percent below the average population. Even applying the guideliness mentioned in Ex. R. 1 10 percent less on the lower side and 10 percent above on the higher side, it cannot be said that the guideliness have been complied with faithfully. The variance of 17 29 percent and 13.96 percent on the lower side cannot be considered as marginal. On the contrary, the State Govt. has already fixed the margin upto 10% on the lower side and 10 percent on the higher side above and below the average population. Thus, 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.1. From the perusal of Ex. R. 2 and Ex. R. 4, it is clear that the population of Chak No. 6 Z and 6-ZA. and the area referred on the western side has not been taken into consideration to a great extent. There is no reference in Ex. R. 2 about Chak No. 6-Z, 6 ZA and Murabhas No. 100,110,119,125 and 135. 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. 1 and some area has also been left over at the time of the consideration.
17. In the result, 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. I direct that the delimitation of the wards should be made at the earliest in the light of the guide-lines given in Ex. R. 1. As far as the question of declaring the provisions of Section 9(2) and Section 14(1)(b) of the Act as ultra vires, the plea of the petitioner is rejected. I hold that these provisions do not violate the fundamental rights of the petitioner,
18. In the circumstances of the case, I direct that the parties shall bear their own costs of this writ petition.