MATHUR, J. - (1.) THIS group of writ petitions has been filed before issuance of the notification for municipal elections seeking direction to postpone the process of election pointing- out serious defects in delimitation of wards, arbitrary reservation of wards for SC/ST, OBC & Women.
(2.) THE main thrust of the challenge is that the delimitation of wards and reservation of seats provided under Section 9, 11, 13, and 14 of the Rajasthan Municipalities act, 1959, hereinafter referred-to as "the Act of 1959, read with Article 243P(g) of the Constitution of India have not been done as per the latest census of 2001 but the last census report of 1991. It is not in dispute that the ensuing Municipal Elections are proposed to be held on the basis of delimitation of wards and reservation of seats as per the last census report of 1991 and not the latest census report of 2001. However, it is submitted inter alia that five years' term of forty five local bodies (Corporation/Council/Board) is going to expire on 28.11.2004. As per the Constitutional mandate under Article 243U, whereby the elections for the Municipal Corporations/Councils/Boards are required to be conducted before expiry of the term but on account of respondent order passed by the Delimitation Commission, no determination could be made. It is further submitted that no prejudice is caused, as the final Electoral Roll which is yet to be published, has been prepared on the basis of the latest survey report. A plea has been raised on behalf of the respondent- Election Commission is terms of Article 243ZG of the Constitution that there is complete & absolute bar of interference by courts in electoral matters relating to local authorities. Thus, the following issues arise for consideration. (i) Whether it is obligatory on the respondents to conduct the ensuring Municipal Elections only on the basis of delimitation of wards & reservation of seats as provided under ss. 9, 11, 13 & 14 of the Act of 1959 read with Article 243P(g) of the Constitution as per the latest Census of 2001 instead of last Census of 1991? (ii) Whether Delimitation Act, 2002 has no application to the Municipal Elections, as it has been specially enacted for readjustment of allocation of seats to the House of the People in the State? (iii) Whether it mandatory for the State Government to hold the Municipal Elections before expiry of the term of five years? (iv) Whether in terms of Article 243ZG of the Constitution, there is a complete & absolute bar in considering any mater relating to Municipal Election on any ground even before the publication of the Notification for holding Municipal Elections by the Court? We have heard Mr. P.S. Bhati, Mr. Rajesh Joshi & Mr. S.D. Vyas learned counsel for the petitioners, Mr. N.M. Lodha learned Additional Advocate General & r. Manish Bhandari learned counsel for the State Election Commission and considered the rival contentions. Part IX & IXA of the Constitution were introduced by (Seventy-third Amendment) Act, 1992 and (Seventy-fourth Amendment) Act, 1992. By these two parts, the highest importance was attached to the holding of Panchayat as well as Municipal Elections with the intention to take democracy to the grass root level. Article 40 of the Constitution which enshrines one of the Directive Principles of the State Policy, lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. While the said directive principle applies to village Panchayats, it was felt that urban local bodies should also be organised and endowed with such powers and authority as are necessary to enable them to function as units of self-government. Though Local Authorities viz; Panchayati Raj Institutions and Urban local bodies have been in existence in the Country for a long time, it was observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a variety of reasons including absence of regular elections, prolonged supersessions, inadequate representation of weaker sections like the Schedule Castes and the Scheduled Tribes and women, insufficient devolution of powers and lack of financial resources. Accordingly, a provision has been made in the Constitution for direct elections in the Urban local bodies; constitution of Committee as the ward level or other levels in Municipal Corporations; representations of Chairpersons of such Committees in Municipal Corporations; reservation of seats for the Scheduled Castes and the Scheduled Tribes in proportion to their population; reservation of seats for women; fixing tenure of five years for Local Authorities and holding elections within a period of six months in the even of supersessions of any such Authority. The amendment empowers the State Legislature to make provisions with respect to elections to Local Authorities including barring interference by courts in electoral matters relating to Local Authorities. Part IXA of the Constitution of India deals with the municipalities. Article 243P provides definition of `municipality' and `population' as follows: "243 P. Definitions.- In this Part, unless the context otherwise requires,- (a) `Committee' means a Committee constituted under article 243S; (b) `district' means a district in a State; (c) `Metropolitan area' means an area having a population of ten lakhs or more, comprised in one of Municipalities or Panchayats or other contiguous areas, specified by the Governor by public Notification to be Metropolitan area for the purposes of this Part; (d) `Municipal area' means the territorial area of a Municipality as is notified by the Governor; (e) `Municipality' means an institution of self government constituted under article 243Q; (f) `Panchayat' means a Panchayat constituted under Article 243B; (g) `population' means the population as ascertained at the last preceding census of which the relevant figures have been published." Article 243Q provides for constitution of Municipalities as follows: "243Q. Constitution of Municipalities.-(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 form 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 ` larger urban area' means such area as the Governor may, having regard to 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 of such other factors as he ma deem fit, specify by public Notification for the purpose of this Part."
(3.) THE composition of municipalities has been dealt with in Article 243R which provides that all seats in a municipality shall be filed by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. Article 243T deals with reservation of seats and provides as under: "243T. Reservation of seats.- (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 form 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, be 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." Article 243U provides duration of municipalities as under: "243U. Duration of Municipalities, etc. - (1) Every Municipality, unless sooiner 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 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 its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, its 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 continue only for the remainder of the period for which the dissolved Municipality would leave continued under clause (1) has it not been so dissolved." ;