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Synopsis

A division bench of the Bombay High Court comprising Justice Sunil B Shukre and Justice MW Chandwani on Monday dismissed a plea filed by Raju Sripad Pednekar, a former corporator of the Uddhav Thackeray-led Shiv Sena faction, challenging the ordinance passed by the current Eknath Shinde government reducing the number of BMC wards to 227 which were increased during the Maha Vikas Aghadi government to 236.

The high court while dismissing the petition said that there was no substance in the petition. “We find no substance in the petition. The petition is dismissed,” the court said.

The ex-corporator approached the High Court after the Supreme Court refused to entertain his plea while asking him to approach the High Court. The petitioner told the High Court that earlier a writ petition was filed against the increase in the number of BMC wards which was dismissed by the High Court on the grounds that the same was in accordance with the 2011 census.

The plea further stated that the Supreme Court had already directed the State Election Commission in 2022 to conduct the delimitation exercise based on the increased number of seats and conduct the local body elections in the State of Maharashtra for reserved seats other than OBC and including the general seats. The State Election Commission then published the final notification of the delimitation as per 236 ward seats.

However, the current government led by Eknath Shinde passed an ordinance reducing the number of seats because of which the entire exercise carried out by the State Election Commission was annulled, the plea stated.

The petition further stated that the said ordinance nullifies the orders of the Supreme Court.

During the hearing, Advocate Sachindra Shetye appearing for the State Election Commissioner (SEC), submitted that for any election, a process of at least six months is needed, and thus the SEC was all set to undertake the process six months before the term of the local body in Mumbai was coming to an end in March 2022. However, in January 2022, the Legislature brought in an enactment that increased the wards from 227 to 236.

The SEC then worked on the process all over again for the formation of nine new wards, but then in September 2022, the new Maharashtra government again brought in another Act reducing the number of wards in Mumbai to 227, the counsel told. 

After the Supreme Court order of May 2022, the SEC continued with the process of election preparation with 236 wards in Mumbai and even issued a final notification to that effect, Advocate Shetye submitted. 

Senior Advocate Aspi Chinoy appearing for Pednekar submitted that SEC had given its compliance report on the process it had done so far following its notification regarding election in 236 wards to the Supreme Court. The state had not raised any objection to the SEC's updates about the work done by them regarding 236 wards as late as July 2022 and instead came up with this new Act, which was manifestly arbitrary, Advocate Chinoy contended. 

Arguing that the said ordinance is arbitrary and while seeking a stay on the ordinance passed by the current government and considering the delay in elections by 6 months, the petition stated,

“The impugned ordinance is also manifestly arbitrary as the very basis of its issuance is ex facie incorrect. The elections to the Mumbai Municipal Corporation are already overdue by more than 6 months contrary to the statutory provisions [sec 6(B)] and the Constitutional mandate of Art 243(E) & 243(U). If the impugned ordinance is not stayed, the SEC will not be able to conduct elections to the MMC on the basis of the delimitation as per order dated 4th May 2022, the elections to the MMC will be further delayed contrary to the orders of the Hon'ble Supreme Court and the statutory and constitutional mandate.”

Advocate General Birendra Saraf, appearing for the Maharashtra government, opposed the petition seeking an increase in the number of wards in Mumbai and said the new government thought it proper to specify the number of councilors after the completion of the census of 2021. Saraf argued that the number of councilors is fixed by a statute, and an increase in population doesn't warrant an increase in the number of councilors.

Case title: Raju Sirpad Pednekar vs State of Maharashtra & Ors.