Permod Kohli, J. - (1.) THIS judgment will dispose of CWP Nos. 10349, 10647, 10632, 9866 and 7970 of 2008 as the questions of law and facts involved in all these petitions are similar and identical.
(2.) CHALLENGE in all these writ petitions is directed against (1) de -limitation of Municipal Wards ; (2) fixing the number of elected members in the Municipal Council/Corporation; (3) reservation for various reserved categories ; and (4) allocation of wards to reserved categories. These writ petitions were accordingly heard and are being disposed of by this common judgment. Part IX -A was introduced in the Constitution of India, - - vide 74th Constitutional Amendment in the year 1992 with effect from 1st June, 1993. The Chapter deals with the creation of Municipalities as also the reservation and elections thereto. Article 243Q deals with the constitution of Municipality for smaller and larger urban areas. Article 243T deals with the reservation of seats. Article 243U deals with the duration of Municipalities. Article 243ZA deals with the election to the Municipalities. Article 243ZF saves the existing laws relating to Municipalities for a limited period or till the same were amended in consonance with the constitutional provisions. Article 243ZG creates bar to interference by courts in electoral matters. For the purpose of brevity, relevant extracts are reproduced here under: Article 243Q. (1) There shall be constituted in every State: (a) A nagar panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area ; (b) a Municipal Council for a smaller urban area ; and (c) a Municipal Corporation for a larger urban area, In accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township. (2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non -agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part. XXX XXX XXX Article 243T: (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. (2) Not less than one -third of the total number of seats reserved under Clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one -third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. (5) The reservation of seats under Clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under Clause (4) shall cease to have effect on the expiration of the period specified in Article 334. (6) Nothing in this Part shall prevent the legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens. Artcle 243U. (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer: Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have be the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till, the expiration of its duration specified in Clause (1). (3) An election to constitute a Municipality shall be completed, - (a) before the expiry of its duration specified in Clause (1); (b) before the expiration of a period of six months from the date of the dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continued only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved. XXX XXX XXX Article 243 ZA. (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all election to the Municipalities shall be vested in the State Election Commission referred to in Article 243K. (2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities. XXX XXX XXX 243ZF. Nothwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy -fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State. Article 243ZG. Notwithstanding anything in this Constitution, - (a) the validity of any law relating to the delimitation or constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243ZA shall not be called in question in any court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
(3.) FROM the reading of Article 243Q, it appears that the constitution of Municipalities is mandatory constitutional requirement. There are three kinds of bodies -(a) Nagar Panchayat relating to the transitional area from rural to urban; (b) Municipal council for a smaller urban area and (c) Municipal Corporation for a larger urban area. Sub -clause (2) of this Article prescribes the parameters for creation of Nagar Panchayat, Municipal Council and Municipal Corporation and it has its genesis to the population of the area, the density of population, revenue generated and host of other factors specified therein. At the time of introduction of the aforesaid constitutional amendment, the State of Punjab had the existing statute, namely, Punjab Municipal Act, 1911. However, some of the provisions of this Act seem to have amended to meet the constitutional requirement of Article 243ZF which requires the existing laws to be amended or repealed in furtherance to the constitutional requirements contained in Chapter IX -A. The existing laws to the extent of inconsistency with the constitutional provisions were allowed to remain in force till they are repealed/amended, but not exceeding one year. This clearly means that all existing laws were to be suitably re -enacted so as to comply with the constitutional mandate contained in Chapter IX -A. In compliance to the requirement of Article 243ZF, the State Legislature appears to have amended the Punjab Municipal Act, 1911. Amended provisions of Municipal Act relevant for purpose of present writ petitions are Sections 3, 8, 12, 13 and 13A of the Punjab Municipal Act, 1911 same are reproduced here under: 3. Definitions - -In this Act, unless there is something repugnant in the subject or context, - (l)to(ll) xxx xxx xxx (11a) "population" means the population as ascertained at the last preceding Census, of which the relevant figures have been published; (12) to (21) xxx xxx xxx 8. Reservation of Seats. - -(1) In every Municipality, out of the total number of elected members determined under Sub -section (3) of Section 12, the State Government shall, by notification reserve: (a) such number of seats for the Scheduled Castes as may be determined by the State Government, subject to the condition that the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality, as the population of the Scheduled Castes, in the Municipal area bears to the total population of that area, and such seats may be allotted by rotation to different constituencies to be known as wards in the Municipality. (b) one seat for the Backward Classes, and, such a seat may be allotted by rotation to different constituencies to be known as wards in the Municipality. (2) Not less than one -third of the total number of seats reserved under Clause (a) of Sub -section (1) shall be reserved for women belonging to the Scheduled Castes. (3) Not less than one -third (including the number of seats reserved for women belonging to the Scheduled Castes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies to be known as words in the Municipality. EXPLANATION. In this section the expression, - (a) "Scheduled Castes" shall have the meaning assigned to them in Clause (24) of Article 366 of the Constitution of India; and (b) "Backward Classes" means the Backward Classes as the State Government may, from time to time, declare by issuing a notification to the Official Gazette. 12. Composition of Municipalities. - -(1) A Municipal "Council or a Nagar Panchayat constituted under Section 4 shall consist of a body of members, specified in section (3), having authority over such area, - (2) The Nagar Panchayat or the Municipal Council constituted under Sub -section (1) shall be a body corporate having perpetual succession and a common seat with powers, subject to the provisions of this Act, to hold, acquire and dispose of property and may be that name sue or be sued. (3) The Nagar Panchayat or the Municipal Council constituted under Sub -section (1) shall consist of the following members, namely: (i) such number of elected members as may be determined from time to time by the State Government in accordance with the prescribed principles ; and (ii) all members of the Legislative Assembly of the State representing constituencies comprising wholly or partly the Municipal Area. 13. Duration of Municipalities - -(1) Every Municipality save as otherwise provided in this Act, shall continue for five years from the date appointed for its first meeting and no longer. Explanation. - -In this section "first meeting" means the meeting of the newly constituted Municipality held for the election of its President and Vice -President under Section 20 of this Act. (2) All Municipalities existing immediately before the commencement of the Constitution (Seventy -fourth) Amendment, 1992, shall continue till the expiration of their duration unless sooner dissolved by a resolution passed to that effect by the State Legislature. (3) An election to constitute a Municipality shall be completed, - (a) before the expiry of its duration specified in Sub -section (1); (b) before the expiration of period of six months from the date of its dissolution: Provided that when the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under Clause (b) for constituting the municipality for such period. (4) The first election to a Municipality constituted under this Act after the commencement of the Punjab Municipal (Amendment) Act, 1994 shall be held within a period of six months of its being notified as such. (5) Elections to the Municipalities where no elected body exists immediately before the commencement of Punjab Municipal (Amendment) Act, 1994 shall be held within a period of six months from the date of such commencement. A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Sub -section (1) had it not been so dissolved. 13 -A. Power of State Government to direct holding of general election: (1) Subject to the provisions of this Act and the rules made there under, the State Government, may by notification, direct that a general election of the members of the municipalities or an election to fill a casual vacancy shall be held by such date as may be specified in the notification and different dates may be specified for elections for different Municipalities or group or groups of Municipalities. (2) As soon as a notification is issued under Sub -section (1), the Election Commissioner shall take necessary steps for holding such general election.;