Ex-BMC Corporator Moves Bombay High Court Against Ordinance Reducing Number Of Wards

The petitioner Raju Pednekar, former corporator of the BMC had approached the Supreme Court for directions to SEC to complete the long overdue elections. The Supreme Court observed that the petitioner should first approach the High Court under article 226 and allowed the petitioner to withdraw his petition. Hence the petitioner has now approached the High Court.

The matter was mentioned for urgent hearing before the bench led by Justice R. D. Dhanuka on Monday and will be heard on Wednesday, November 16, 2022.

The petition prays for declaration under article 226 of the Constitution that the Maharashtra Ordinance no. VII of 2022 (impugned ordinance) is ultra-vires the Constitution of India and hence null and void.

The petitioner has also sought a stay on the ordinance during pendency of the case with clarification that the SEC is required to proceed and conduct elections to the BMC on the basis of delimitation carried out by it in accordance with the Supreme Court orders.

The state government in 2021 issued an ordinance and amended section 5(1)(a) of the Mumbai Municipal Corporation Act to increase the number of elected councillors in the BMC to 236 from 227. Bombay High Court dismissed the petition challenging this ordinance. An SLP challenging the High Court judgement was dismissed by the Supreme Court.

The Maharashtra government had issued Ordinance no. III of 2021 providing 27% reservation to backward classes of citizens in the elections of local bodies. This was challenged in the High Court and was later considered by the Supreme Court. The Supreme Court asked the State Election Commission (SEC) to renotify the reserved seats for general category and proceed with the elections to the local bodies.

Then the SEC proceeded with the delimitation process, i.e., the process of formation of wards and specifying boundaries of the wards. A draft delimitation notification was issued by the BMC Commissioner in February 2022.

The state government enacted Maharashtra Act No. XXI of 2022 which annulled the delimitation process started by the SEC and provided that the delimitation process shall be done afresh by the state government. This Act substitutes the term 'State Election Commission' with the term 'State Government' in sections 2 and 3 of the MMC Act for undertaking the delimitation process.

This was challenged before the Supreme Court which on May 4, 2022 directed that the process of delimitation may be continued by the state government only for future elections and directed the SEC to notify the present elections on the basis of the delimitation done by it.

The SEC finalised the delimitation for the BMC for 236 seats. Thereafter, the Supreme Court on July 27, 2022 directed the SEC to commence the election process on the basis of its earlier order on May 4, 2022.

However, on August 8, 2022, the state government issued the impugned ordinance reducing the total number of seats of elected councillors in the BMC from 236 to 227 stating that the seats were earlier increased on the basis of census 2011 and hypothetical calculation of population 2021-22. The ordinance further stated that the state government considered it "expedient to specify the number of councillors of corporations on the basis of 2021 census after it is completed". The ordinance annulled the delimitation process completed by the SEC and provided that the delimitation would be done afresh by the state government as per the reduced number of councillors i.e., 227.

"The present impugned ordinance is a clearly unconstitutional and illegal attempt to nullify, defeat, and stultify the decisions/orders of the Hon'ble Supreme Court dated 4th May 2022 and 27th July 2022 and is accordingly a violation of separation of powers and the basic rule of law enshrined in the Article 14 of the Constitution of India" the petition alleges.

The Supreme Court had directed that the present overdue elections to the local bodies would be notified and conducted by the SEC on the basis of delimitation carried out by it in view of articles 243E and 243U of the Constitution; however, the impugned ordinance is attempting to defeat the Supreme Court orders, the petition alleges.

The ordinance would cause delay in the elections to the BMC and other municipal corporations by annulling the delimitation process conducted by the SEC, the petition states.

According to the petition, the impugned ordinance is 'manifestly arbitrary' and 'expressly incorrect'. The increase in number of elected councillors was based on the published figures of the 2011 census and not on any hypothetical calculation of population in 2021-22, the petition claims.

The impugned ordinance is not only directly contrary to the Supreme Court orders but is also ultra-virus the statutory provisions requiring elections to local bodies to be conducted before the expiry of the present term, the petition states.

The ordinance was issued arbitrarily and without application of mind, the petition states, adding that non-availability of population figures of 2021 census has no link with increase in the number of councillors in the BMC as it was increased only on the basis of the published 2011 census figures.

Case Title – Raju Pednekar v. State of Maharashtra and Ors.