# Ratan Kumar Dixit and others v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ratan-kumar-dixit-and-others-v-state-of-u-p-and-others-39594
- **Pages:** 8

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
198
is passed granting or refusing the leave to
file a suit he is bound to take into
consideration the documentary or oral
evidence on record and examine the same
critically and thereafter pass the order. In
the instant case, court below did not take
the evidence filed by the applicants into
consideration and did not record cogent
reasons, therefore, the impugned order is
liable to be set aside.

14. This revision succeeds and is
allowed. The order dated 4.12.1992 is
hereby set aside. The case is, however,
sent back to the court below for decision
in the light of the observations made
above expeditiously within a period of
two months from the date a certified copy
of this order is communicated to the court
below. It is further provided that the case
shall be decided by a Judge other than the
Judge who has passed the impugned
order. The District Judge, Jhansi shall
pass appropriate orders in this regard in
exercise of power under Section 24,
C.P.C.

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1All] Ratan Kumar Dixit and others V. State of U.P. and others 199
By the Court

1. This writ petition under Article
226 of the Constitution has been filed
praying for several relief's and the
principal relief's are that the notification
issued by the State Government providing
for reservation of wards in all the eleven
Nagar Nigams (Municipal Corporations)
in the State be quashed and a direction be
issued to the respondents not to proceed
with the election in the Municipal
Corporations
until
the
exercise
of
determination of actual population of the
Scheduled
Castes,
Scheduled
Tribes,
Backward Classes and also the total
population of different wards of Nagar
Nigams is completed and the seats in the
wards are reserved in accordance with law
for different categories of persons who are
entitled for reservation.

2. Petitioner nos. 1,3 and 4 are
residents of and are registered as voters in
Nagar Nigam, Gorakhpur and petitioner
no. 5 is resident of and is registered as
voter in Nagar Nigam, Aligarh. The
respondents arrayed in the writ petition
are State of U.P., Director, Local Bodies,
State Election Commission, and the
District
Election
Officers/District
Magistrates, Allahabad, Gorakhpur and
Aligarh.

3. Sri Ravi Kiran jain, learned senior
counsel for the petitioners has submitted
that the last census in the State of U.P.
had been held in the year 1991 and the
figures of population are available of the
said census only and thereafter a rapid
survey was done in the year 1994 with a
view to determine the population of other
backward classes alone. No fresh survey
has been undertaken to determine the
actual
population
of
the
different
categories of persons namely, Scheduled
Castes, Scheduled Tribes and other
backward classes. The numbers of wards
in the Nagar Nigams as per the
Delimitation
Order
of
1995
done
consequent upon the Constitution (74th
amendment)
Act
of
1992
were
substantially increased. In Allahabad the
number of wards which were 40 in the
year 1991 have been increased to 70 in
the year 1995 and in Gorakhpur and
Aligarh they have been increased from 30
to 60 in the same period. However, for
the purpose of forthcoming election of
Nagar Nigams in the State which is
scheduled to take place in November,
2000 no survey of population has been
done either of the general category or of
reserved category nor the population of
individual wards has been ascertained.
According to the learned counsel the
mandatory requirement of sub-section (1)
of
section
32
of
U.P.
Municipal
Corporations
Adhiniyam,
1959
(hereinafter referred to as the Act) had not
been complied with, and therefore, the
notification
issued
by
the
State
Government
regarding
reservation
of
seats in different wards was wholly
illegal. Learned counsel has thus urged
that till such exercise was done and the
provisions of sub-section (1) of section 32
of the Act and also the directions issued
by a Division Bench of this court in
Mukesh Ram Chandani Vs State of U.P.
1996 AWC 153 had been complied with,
no election for electing sabdhasads of
Nagar Nigam should be held in the State.

4. Sri Ashok Mehta, learned Chief
standing
counsel
appearing
for
the
respondents has submitted that the Nagar
Nigams have been divided into wards
strictly in accordance with clause (a) of
sub-section (1) of section 32 of the Act
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
200
and the delimitation of wards and
reservation
thereafter
for
different
categories of persons have been done in
accordance with the provisions of the Act
and the rules and there was no illegality in
the same. He has further contended that
the draft of the order under sub-section
(1) of section 32 of the Act, which was
proposed to be passed by the State
Government, was published in the official
gazette and also in the newspapers
inviting objections and the objections
filed thereto had been considered which
were decided by speaking order. There
was no error or illegality in creating the
wards or reserving the same for different
categories of persons and provisions of
section 32 of the Act had been fully
complied with and, as such, there was no
ground for quashing the final order or for
staying the holding of elections.

The submission of Sri Jain is based
upon section 32 of the Act relating to
Delimitation
Order
which
is
being
reproduced below:

"Delimitation Order-(1) The State
Government shall, by order, determine----
-
(a) a city shall be divided into wards in
such manner that the population in each
ward shall, so far as practicable, be the
same throughout the municipal area;
(b) the extent of each ward;
(c) -----(Omitted by U.P. Act 12 of 1994);
(d) The number of seats to be served for
the scheduled Castes, the Scheduled
Tribes, backward classes and women;
(2) The draft of the Order under subsection 91) shall be published in the
official Gazette for objections for a period
of not less than fifteen days.
(3) The State Government shall consider
any objection filed under sub-section (2)
and the draft Order shall if necessary, be
amended, altered or modified accordingly
and thereupon it shall become final."

6. The main ground of challenge of
Sri Jain is that the State Government did
not conduct any survey for determining
the exact population of Scheduled Castes,
Backward classes and women before
issuing the notification and as such the
provisions of clause (a) of sub-section (1)
of section 32 of the Act have not been
complied with. A plain reading of clause
(a) of sub-section (1) will show that a City
is to be divided into wards in such manner
that the population in each ward shall, so
far as practicable, be the same throughout
the
municipal
area.

The
word
'population' has been defined both in the
Constitution and also in the Act. Part
IXA of the Constitution deals with
Municipalities and clause (g) of Article
243 P defines 'population' which means
the population as ascertained at the last
preceding census of which the relevant
figures have been published. Section 2
(53-A)
of
the
Act
also
defines
'population'
and
it
is
the
exact
reproduction of clause (g) of Article 243P
of the Constitution. Therefore the word
'population' as used in clause (a) of subsection (1) of section 32 of the Act would
mean the population of the city as
ascertained at the last preceding census of
which the relevant figures have been
published. It is averred in paragraph 13
of the writ petition that in the entire State
of Uttar Pradesh, the last census was
undertaken in the year 1991 and the only
published figures available are that of the
said census. Subsequently a rapid survey
was undertaken in the year 1994 to
determine
the
population
of
other
Backward Classes only. It is further
averred that no fresh survey of population
1All] Ratan Kumar Dixit and others V. State of U.P. and others 201
was undertaken to determine the actual
population of other categories namely
Scheduled Castes and Scheduled Tribes at
the time of rapid survey. Therefore, it is
the own case of the petitioners that the
relevant figures of last preceding census,
which was held in the year 1991 alone,
are available. This factual position has
also been admitted by the learned Chief
Standing counsel. Therefore, the division
of the city into wards has to be done on
the basis of the figures which have been
published
on
the
basis
of
census
conducted
in
the
year
1991
and
reservation of seats in the wards had to be
done after taking into consideration the
figures of Backward Classes as revealed
by the rapid survey. Learned counsel for
the petitioners has not been able to point
out any provision which may require that
before holding the election a fresh survey
of the entire population ought to have
been done or that the reservation of wards
for different categories of persons could
not be done till a fresh survey had been
done and the population of different
categories
of
persons
for
whom
reservation has to be provided namely,
Scheduled Castes, Scheduled Tribes and
women had been ascertained. We,
therefore, do not find any illegality in the
order of the State Government by which
delimitation or reservation of wards has
been done.

7. Sri Jain has laid great emphasis
on certain observations made by a
Division Bench of this Court while
deciding a bunch of writ petitions which
had been filed challenging the elections of
Nagar Nigams which were going to be
held in November, 1995. According to
learned counsel the observation made in
paragraphs 79 to 81 of the judgment in
Mukesh Ram Chandani Vs State of U.P.
1996 AWC 153 are still applicable as the
situation has not changed. The relevant
portion of the judgment in the said case
on which reliance is placed is being
reproduced below:

"79 The facts of the present case;
fully demonstrate that there did not exist
any material or basis either in the census
of 1991 or with the respondents on the
basis of which the general population or
the population of Scheduled Caste could
be assessed or determined from any of the
wards notified. The State Government
acted arbitrarily in delimiting the wards
and allocation of reserve seats without
undertaking any survey operations for
determining the actual population which
alone could be the sole criteria provided
under the Act. Both for the purpose of
delimitation of constituencies as also for
reservation and for allocation of reserved
seats. The act of putting the figures of
population general and reserved category
in each of the newly carved out wards has
been done on mere imagination on the
basis of the census of 1991 and which was
only for the erstwhile wards and was not
based on mohallas or localities or part of
the locality which have now been;
included in the new wards.

80. On account of the failure of the
State Government to determine the ward
wise population, which was absolutely
essential for the purpose of allocation of
seats and for making reservations in their
favour, the reservation of seats for the
Scheduled Castes stands vitiated.

81. This survey of the backward class
population made during the years 1994
and
1995
when
delimitation
of
constituencies was in process, also stands
vitiated on account of the fact that survey
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
202
of their population has been done without
either identifying or excluding those
persons who fall in the category of
creamy layer. In fact, there does not exist
any norm for excluding the creamy layer.
The State Government has not yet framed
any valid norms for identification of the
creamy layer and their exclusion and
therefore, it is not permissible in law to
provide reservation in favour of the back
ward classes."

8. Sri Ashok Mehta, learned chief
standing counsel has however submitted
that the decision in the case of Mukesh
Ram Chandani (supra) was challenged by
filing an appeal and the same was allowed
by the Supreme Court on September 10,
1996. He has referred to paragraphs 32 to
34 of the decision of the said case in
Anugrah Narain Singh and another vs.
State of U.P.& others (JT 1996SC (8) 733
which are relevant to the controversy in
hand and they are reproduced below:

"32.
The
case
of
the
State
Government in the court below as well as
here is that the election has to be
conducted on the basis of the last census
which was held in the year, 1991. The
next census is due to be held in 2001. But
in the meantime, election to the municipal
bodies will have to be held. The basis for
holding such elections is the last available
census figures. But where no census
figures are available, then a survey has to
be made by the Government to find out
the correct figures. For example Article
243T specifically reserves the right of the
State Legislative for making provisions
for reservation of seats in favour of
backward
classes
of
citizens.
This
reservation has been made by the State
Legislature of U.P. for ensuring that the
backward class people are adequately
represented in the local bodies. Section 7
of the U.P. Act specifically provides for
reservation of seats of backward classes
and empowers the State Government that
if the figures of backward classes were
not available, their population may be
determined by carrying out a survey in the
manner prescribed by the rules.

33.
In
our
view, the argument
advanced on behalf of the State must be
upheld. It is true that Article 243-P (g) has
defined population to mean " population
as ascertained by the last preceding
census of which the relevant figures have
been published." The delimitation of
constituencies and also preparation of
electoral rolls will have to be done on the
basis of the figures available from the last
census
which
was
taken
in
1991.
Reservation of seats for scheduled castes
and scheduled tribes is mandator has
made
it
permissible
for
the
State
Government to reserve seats for other
backward classes. The census of 1991 has
not enumerated the number of persons
belonging to backward classes. Therefore,
in order to reserve seats for citizens
belonging to backward classes their
number will have to be found out Clause
(6) of Article 243T has impliedly
empowered the State Government to
ascertain the backward classes and the
number of people belonging to such
classes. Otherwise, the provisions of
clause (6) of Article 243T will become
otiose and meaningless. Merely because
such an enumeration of people belonging
to backward classes was made does not
mean that the figures enumerated by the
last census were discarded. The latest
available census figures had to be the
basis
for
delimitation
of
the
constituencies, preparation of electoral
rolls and also for reservation of seats for
scheduled castes, scheduled tribes and
1All] Ratan Kumar Dixit and others V. State of U.P. and others 203
women. But census figures are not
available
for
persons
belonging
to
backward classes. The next census will be
in the year 2001. There is no way to
reserve seats for backward classes in the
meantime except by making a survey of
the number of persons belonging to such
classes for the purpose of giving them
assured representation in the municipal
bodies. To do this exercise is not to do
away with the last available census
figures but to find out what was not to be
found by the last census. Had such
counting been done in the census, then it
would not have been open to the State
Government of embark upon a survey on
its own. The State Government here had
only two choices. It could say that there
will
be
no
reservation
for
people
belonging to backward classes because
the census figures of such people are not
available or it could make a survey and
count the number of people belonging to
the backward classes and reserve seats for
them in the municipal bodies. The State
Government has taken the later course.
This is in consonance with the provisions
of clause (6) of Article 243T. Therefore,
the survey made by the State Government
for finding out the number of persons
belonging of backward classes was not in
any way contrary to or in conflict with
any of the provisions of the Constitution.

34. Moreover, the U.P. Act of 1959
was amended to make it consistent with
the provisions of Part IX-A of the
Constitution. Population was defined in
Section 2 (53-A) to mean "population as
ascertained in the last preceding census of
which the relevant figures have been
published". This is identical to the
definition
given
in
Article 243P(g).
Section 32 which deals with delimitation,
inter
alia,
provides
that
the
State
Government shall by order determine the
number of seats to be reserved for
scheduled
castes,
scheduled
tribes,
backward classes and for women. Section
7 lays down that in every Corporation,
seats shall be reserved for scheduled
castes, scheduled tribes and backward
classes. There is a second proviso to
Section 7 which lays down that if the
figures of backward classes are not
available,
their
population
may
be
determined by carrying out a survey in the
manner prescribed by the rules. These
provisions come within the ambit of the
phrase
"any
law
relating
to
the
delimitation of the constituencies or
allotment of seats to such constituencies".
The validity of this law cannot be
challenged because of the protection
given
by
Article
243-ZG
of
the
Constitution. Therefore, the question
whether the survey made by the State
Government to ascertain the figures of
persons belonging to backward classes
was lawful or not cannot be raised in any
Court."

The operation portion of the order of
the Supreme Court reads as follows:

"For the reasons given hereinabove,
we are of the view that the impugned
judgment was erroneous and improper.
We allow this appeal. The judgment
under appeal is set aside...."

9. It is therefore, clear that the
judgment of the Division Bench of this
Court in Mukesh Ram Chandani (supra)
had been held to be erroneous and
improper and same was set aside.
Therefore, the contention of Sri Jain that
the order regarding delimitation and
reservation of wards is illegal as the
direction given in the said case had not
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
204
been
complied
with
by
the
State
Government cannot be accepted. On the
merits also, the view taken by us is in
consonance with the observations made
by the Apex Court wherein it has been
held
that
the
delimitation
of
constituencies and also preparation of
electoral rolls will have to be done on the
basis of the figures available from the last
census. The same principle has to be
applied for reservation of seats for
Scheduled Castes and Backward Classes.
It has been observed in paragraph 33 of
the judgment that the next census is due to
be conducted in the year 2001 and
reservation of seats of backward classes
which is mandatory under Article 243T of
the Constitution, can be done by making
survey and this will not mean that the
figures available from the last census
were to be discarded. In fact section 7 of
the Act clearly provides that if the figures
of backward classes are not available,
their population shall be determined by
taking
out
survey
in
the
manner
prescribed by rules.

10. The writ petition was filed in
office on October 13, 2000 and till then
the objections filed by the petitioner no. 1
on the draft of the order issued by the
State Government under sub-section (2)
of section 32 of the Act had not been
decided. The writ petition was heard for
admission on October 18,2000 when the
State counsel was directed to obtain
instructions whether the objections had
been decided and the hearing was
adjourned to October 20,2000. On the
said date learned Chief Standing counsel
made a statement that the objections had
been decided by the State Government
and consequently a direction was issued
to supply copy of the order to the writ
petitioners. The petitioners thereafter filed
copy of the order passed by the State
Government along with a supplementary
affidavit and also moved an application
praying that the said order be quashed and
a direction be issued to the respondents to
redetermine the delimitation of wards and
reservation of seats for the ensuing
election and not to hold the election of the
Municipal Corporations unless the said
exercise was done. Learned counsel has
submitted that the order passed by the
State Government is a non-speaking order
which gives no reason and, therefore, the
same deserves to be quashed. We have
carefully gone through the order under
challenge and we are unable to hold that
the same is a non- speaking order. The
order makes reference to the objection
filed by petitioner no.1 Ratan Kumar
Dixit, the grounds taken in the objection
and the reasons for rejecting the same.
The principal reason given therein is that
in view of the constitutional provisions
contained in Article 243P(g) 'population'
would mean the population as ascertained
at the last preceding census of which the
relevant figures have been published and
after taking note of section 2(53-A) of the
Act it has been held that as the last survey
had been done in the year 1991 and the
figures of the said survey alone are
available, the same had been taken into
consideration. Besides that the figures
obtained in the rapid survey done in the
year 1994 were also considered. It has
also been held that the delimitation and
reservation of seats had been done in
accordance
with
U.P.
Municipal
Corporations Adhiniyam, 1959 and U.P.
Municipalities
(Reservation
and
Allotment of seats and office) Rules,
1994, as amended from time to time
reading of the order of the State
Government
clearly
shows
that
the
concerned authority has applied his mind
1All] Indian Oil Corporation Ltd. V. M /s Vidyawati Construction Co. Ltd. 205
to the contention raised in the objection
filed by petitioner no.1 and has thereafter
passed
the
order
after
taking
into
consideration the relevant factors and also
the constitutional and statutory provision
governing the controversy in issue. Thus,
the submission of the learned counsel that
the order of the State Government dated
15th October, 2000 is a non speaking and
arbitrary order, cannot be accepted.

11. It may be mentioned here that in
State of U.P. and others vs. Pradhan
Sangh Kshettra Samiti and others (AIR
1995 SC 1512) the apex Court while
considering a similar question relating to
delimitation
and
reservation for the
purpose of holding election in the
Panchayats, observed as follows:

"....If we read Articles 243-C, 243-K and
243-O in place of Article 327 and section
2(kk) of the Delimitatiation Act, 1950, it
will
be
obvious
that
neither
the
delimitation of the panchayat area nor of
the constituencies in the said area and the
allotments of seats to the constituencies
could have been challenged or the Court
could have entertained such challenge
except on the ground that before the
delimitation no objections were invited
and no hearing was given. Even this
challenge could not have been entertained
after the notification for holding the
elections was issued...."

12. It is not the case of the
petitioners that no objections were invited
or they were not given any opportunity to
file objection. The draft order was
published by the State Government in
accordance with sub-section (2) of section
32 of the Act and the petitioners were
given opportunity to file objections. Thus
the ground on which an order of
delimitation
and
reservation
of
constituencies can be challenged, as
observed by the Apex Court, is not
available to the petitioners.

13. Sri Jain has also submitted that
the impugned order dated October 15,
2000 of the State Government has been
antedated and in fact it was not in
existence till as late as October 22, 2000.
This question is purely factual in nature.
We have gone through the averments
made in the supplementary affidavit and
have also heard the learned Chief
Standing Counsel on this point. On the
basis of material placed before us it is not
possible to hold that the impugned order
dated October 15, 2000, deciding the
objection filed by petitioner no. 1, has
been antedated or that the same was not in
existence till October 22, 2000.

14. For the reasons mentioned
above, we find no merit in the writ
petition and is hereby dismissed at the
admission stage.

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