Aastha Thakur
Published on: 20 October 2022 at 21:51 IST
Supreme Court permitted authority to the petitioner for challenging the decision of the present Maharashtra Government to decrease the number of BMC councillors from present 236 to 227, and for this they sought permission to approach the Bombay High Court.
The petition questioned the constitutional validity of Maharashtra Ordinance No. VII of 2022, which states to have ‘put the clock back’ and repealed the earlier Amendment Act whereby the delimitation of the wards of BMC was increased from 227 to 336.
The Division Bench of Justices DY Chandrachud and Hima Kohli asked the petitioner to take back the plea filed under Article 32 of the Constitution and approach the High Court contesting the constitutional validity of Maharashtra Ordinance No. 7 of 2022 which later became Act 43 of 2022.
Justice Chandrachud stated that the petitioner still needs to exhaust its alternative remedy while raising their grievances before the Bombay High Court, which also has means to decide the issue of constitutionality of the impugned Act.
The petitioner’s counsel Senior Advocate, Mr. Devdutt Kamat submits that the way BMC councillors have been reduced from 236 to 227 via impugned Act, it will affect the election procedure being carried out for the civic bodies in the State.
Justice Chandrachud stated –
“They have reduced the no. of councilors. That is a legislative Act. Raise it before the High Court.”
Mr. Kamat gave a detailed explanation regarding the filing of the plea before the court, stating that the number of seats was increased from 227 to 236 via the 2021 amendment ordinance, i.e., Mumbai Municipal Corporation (Second Amendment) Ordinance.
The Bombay HC upheld the validity of Ordinance when challenged in the court of law, stating that the proportion of elected municipal councillors should increase according to the 2011 population census.
The apex court also agreed with this order of the High Court. Reeling back to the present, the Supreme Court ordered the State Election Commission to conduct elections for the civic bodies without any further delay. However, the government changed in between all of this and the number of councillors was reduced from 226 to 236.
According to Mr. Kamat, the failure to carry out the 2021 census deemed the increase in ward demarcation invalid, and as a result, the annulment of the rise was reasonable. He stated that the High Court and Apex Court both specifically noted that the failure to complete the 2021 census would not hinder a rise in the number of directly elected council members. According to the argument, the in-question Act thus goes against the ruling of the Constitutional Courts.
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 further 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.”