# Vidyanand v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 190
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidyanand-v-state-of-u-p-and-others-39580
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
190
observations made in this judgment
within a period of three months from the
date of receipt of this Order. Parties may
submit their written statements etc. before
the
Regional
Deputy
Director
of
Education within a month.

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By the Court

1. The petitioner filed an application
under section 30 of the U.P. Trade Tax
Act copy of which has been filed as
Annexure
I
to
the
Supplementary
affidavit.

2. The petitioner is disposed of with
the direction to the authority concerned to
decide the application preferably within
one month from today.

3. We make it clear the under
Section 30 of the U.P. Trade Tax Act the
authority concerned has power to issue a
stay order of granting interim relief if stay
application is filed by the petitioner the
same shall be decided by the authority
concerned within three days from the date
of filing of the application.

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1All] Vidyanand V. State of U.P. and others 191
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By the Court

1. This writ petition under article
226 of the constitution has been filed
praying that the notification issued by the
state government on September 27,2000
reserving only 7 wards in Nagar Palika
Parishad
Farrukhabad
for
backward
classes be quashed and a writ of
mandamus be issued restraining the
respondents from issuing any notification
for holding election for the said Nagar
Palika Parishad till the number of wards
reserved
for
backward
classes
is
increased.

2. Mrs. Poonam Srivastava learned
counsel for the petitioner has submitted
that
the
last
election
for
electing
Sabhshads for Nagar Palika Parishad was
held in the year 1995 on the basis of the
census conducted in 1994 In the said
election. The Nagar Palika Parishad was
divided into 29 wards and 8 wards were
reserved for backward however in the
notification
issued
by
the
state
Government on September 27.2000 the
wards reserved for backward classes have
been reduced from 8 to 7 learned counsel
has
elaborated
her
argument
by
submitting that though according to the
population of the backward classes they
are entitled to reservation in to wards in
view of formula contained in U.P.
municipalities (Reservation and allotment
of seats and offices ) Rules, 1994 but as
their number cannot be more than 27 per
cent. The number of wards to be reserved
for them should by 8 as was done in the
last election which was held in 1995.

3. The State Government in exercise
of powers conferred by section 296 of the
U.P. Municipalities Act read with section
9-A of the said Act has made the U.P.
Municipalities (Reservation and allotment
of seats and offices) Rules, 1994 rule 4
(1) provides the method for determination
of seats to be reserved for scheduled
castes and scheduled tribes this rule was
amended on April 20.1995 and after the
amendment it reads as follows:

"4 (1) The number of seats to be
reserved
in a municipality for the
Scheduled Castes for the Scheduled
Tribes, or the backward classes under
sub-section (1) of section 9-A of the act
shall be so determined that it shall bear, as
nearly as may be, the same proportion to
the total number of seats in a municipality
as the population of the Scheduled Castes
in the municipal area or the Scheduled
Tribes in the municipal area or the
backward classes in the municipal area
bears to the total population of such area
and if in determining such number of
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
192
seats there comes a remainder then if it is
half or less than half of the divisor. It shall
be ignored and if it is more than half of
the divisor. the quotient shall be increased
by one and number so arrived at shall be
the number of seats to be reserved for the
Scheduled Castes or the Scheduled Tribes
or the backward classes as the case may
be:

Provided that number of seats to be
reserved
in a municipality for the
backward classes under sub-section (1) of
section 9-A of the Act, shall not be more
than twenty seven per cent of the total
number of seats in a municipality."

According to the aforesaid rule the
number of wards to be reserved for
backward classes has to be calculated on
the basis of following formula:

Number of wards X Backward Classes
population of Nagar Palika Parishad
Total number of population

4. It is averred in the writ petition
that the total population of Nagar Palika
Parishad as per the census of 1994 is
1,94,567 and the population of backward
classes is 67,953. By applying the
aforesaid formula, the number of wards to
be reserved for backward classes come to
10.12. However, in view of the restriction
that the wards reserved for such category
of persons cannot exceed 27 percent
which when calculated on the total figure
of 29 comes to 7.83. The contention of
Mrs. Srivastava is that as the remainder is
more that half, the quotient should be
increased by on. It is thus urged that the
figure 7.83 so calculated should have
been treated as 8 and such number of
wards should have been reserved for the
backward classes.
5. The argument of learned counsel
for the petitioner looks attractive at the
first blush but a deeper scrutiny would
show that it has no substance. Though the
main part of sub-rule (1) of rule 4
provides that if after determining the
number of wards according to the formula
these comes a remainder which is less
than half, it shall be ignored and if more
than half, the quotient shall be increased
by one but there is proviso to the sub-rule
which clearly lays down that number of
wards to be reserved for backward classes
shall not be more than 27 per cent of the
total number of wards in a municipality.
In CIT, Mysore Versus Indo Mercantile
Bank Ltd. AIR 1959 SC 713 at 717, it
was held that the proper function of a
proviso is that it qualifies the generality of
the main enactment by providing an
exception and taking out as it were, from
the main enactment, a portion which, but
for the proviso would fall within the main
enactment. Similar view was taken in S.
Sundaram
Pillai
Versus
P.
Pattabiraman, AIR 1985 SC 582. As a
general rule a proviso is added to an
enactment
to
qualify
or
create
an
exception to what is in the enactment.
Therefore, the effect of main part of subrule (1) of rule 4 is curtailed or
circumscribed
by
the
proviso.
As
mentioned earlier, the total number of
wards in Nagar Palika Parishad is 29 and
its 27 per cent comes to 7.83. If the said
figure is taken to be 8 in view of the main
part of sub-rule (1), it will definitely
exceed 27 percent which is clearly
prohibited by the proviso. In view of
proviso, the number of wards to be
reserved for backward classes cannot
exceed 27 per cent and, therefore, 7.83 is
the outer figure. In such circumstances,
the number of wards to be reserved for
backward classes has to be 7 and not 8.
1All] P.D. Tiwari, Chela Sri R. Das and others V. Lakhan Singh and others 193
For the reasons mentioned above, we
find no merit in the writ petition, which is
hereby
dismissed
summarily
at
the
admission stage.

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By the Court

1. In this case counter and rejoinder
affidavits were filed by the parties. As
desired by the learned counsel for the
parties, case was heard and is being
decided finally at this stage.

2. The instant revision arises out of
the proceedings under section 92, C.P.C.
and is directed against the judgment and
order passed by the District Judge, Jhansi,