Supreme Court Refuses To Entertain Plea Challenging Decrease In Number of BMC Councillors; Gives Liberty To Move HC

A Bench comprising Justices D.Y. Chandrachud and Hima Kolhi asked the petitioner to withdraw the petition filed under Article 32 of the Constitution and approach the High Court inter alia, challenging the constitutional validity of Maharashtra Ordinance No. 7 of 2022 which later became Act 43 of 2022.

At the outset Justice Chandrachud indicated that the petitioner should raise their grievances before the Bombay High Court, which is also equipped to decide the issue of constitutionality of the impugned Act.

Senior Advocate, Mr. Devdutt Kamat appearing on behalf of the petitioner, submitted that by way of the impugned Act the number of BMC councillors have been reduced from 236 to 227. It was asserted that the election process which was being carried out for civic bodies in the State would be adversely affected if the impugned statute is acted upon.

Justice Chandrachud stated -

"They have reduced the no. of councilors. That is a legislative Act. Raise it before the High Court."

Mr. Kamat apprised the Bench that in 2021, by way of amendment ordinance, i.e., Mumbai Municipal Corporation (Second Amendment) Ordinance, the number of seats were increased from 227 to 236. The same was challenged before the Bombay High Court. He emphasised that the High Court had upheld the validity of the Ordinance noting that the number of directly elected municipal councillors was proportionate to the increase in population based on the 2011 census. By an order 17.01.2022, the Apex Court had affirmed the order of the High Court. Thereafter, considering that the elections were due in March, 2022, on 04.05.2022, the Supreme Court directed the election process for the civic bodies to be conducted without any delay. The State Election Commission was asked to notify the election programme within 2 weeks. Subsequently, there was a change in the Government and the numbers of councillors were reduced from 226 to 236. Mr. Kamat submitted that the reason provided for annulment of the increase in the demarcation of the wards was that the 2021 census had not been undertaken and therefore the increase is not sustainable. He averred that the High Court, had categorically observed that the non-completion of the 2021 census would cause no impediment in increasing in number of directly elected councillors; and the same was affirmed by the Apex Court. It was argued that the impugned Act is, thus, in the teeth of the judicial decision of the Constitutional Courts.

Mr. Kamat also expressed concern that the work undertaken by the State Election Commission and the state machinery for the past one and a half years under the supervision of the Apex Court would become futile and at the same time the public exchequer would endure a huge loss.

Justice Chandrachud insisted that the petition should go before the High Court.

"You can go to the High Court. The Supreme Court upheld the order of the High Court by virtue of which the numbers increased. Now they have passed an Ordinance/Act reducing the numbers."

He added -

"Challenge the Act before the High Court. The High Court is not disabled from hearing it. Why should we (Supreme Court) hear challenges to the electoral process of all States here?Let us have the benefit of the High Court judgment."

The petition has been filed by Mr. Raju Shripad Pednekar and through Advocate-on-Record, Mr. Nishant Patil.

[Case Title: Raju Shripad Pednekar v. State of Maharashtra And Ors. WP(C) No. 748/2022]

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