N.V. Dabholkar, J.@mdashHeard respective counsel. Rule. Rule made returnable forthwith by mutual consent and taken for final hearing.
2. A very short question of interpretation of Rule 5 of the Cantonment Electoral Rules, 2007, arises for our consideration in this writ petition.
3. Petitioner is resident of cantonment area, Aurangabad, and elections of Cantonment Board, Aurangabad, are round the corner. Respondent No. published a draft of Cantonment Electoral Rules, 2007, in exercise of powers conferred by Section 31 of the Cantonments Act, 2006. The Cantonment Board has also published a draft for division of cantonment into wards on the notice board as well as in the local newspapers on 10.9.2007 inviting objections and suggestions. After considering the objections and suggestions, the wards were formulated and taking into consideration the latest census figures of the Cantonment Board, seven wards were formulated out of which Ward No. 7 was declared as reserved for scheduled caste.
According to latest census, total population of the cantonment, Aurangabad, is 19172 and the population of scheduled caste is 2225. Thus, percentage of scheduled caste population in the cantonment area is 11.60%. Taking into consideration that seven wards are formulated for the purpose of election as per the First Schedule under Rule 5 of the Rules, 2007, 14% is the minimum percentage required for reservation for scheduled caste and scheduled tribe and hence petitioner is aggrieved by reservation of Ward No. 7 (one seat out of 7) for scheduled caste category.
4. Replies are filed on behalf of respondents and the dispute can be resolved by interpretation of Rule 5. relevant portion of which reads thus:
5. Reservation of seats for scheduled castes and scheduled tribes:
(1) Seats shall be reserved for the scheduled castes and scheduled tribes in every cantonment on the basis of the percentage which their population bears to the total population of the cantonment according to latest census and the minimum percentage required for such population shall be as specified in the First Schedule.
Provided that the scheduled caste or the scheduled tribe population so exceeds the minimum required percentage in any cantonment that they become entitled to higher reservation, the number of seats reserved for them may be increased proportionately, according to their population of the area and in determining the number of seats to be reserved for the scheduled castes or the scheduled tribes, if the scheduled caste or scheduled tribe population falls short by less than 3% of the required minimum percentage, the figure may be rounded off for the reservation of a seat or seats for which they would have otherwise been entitled.
We are not required to refer to other sub-rules.
Advocate for petitioner on one side and both the counsel for respondents on the other side, have tried to interpret Rule 5 and according to Advocate for petitioner, the relaxation of 3 % of the required minimum percentage as contained in the proviso is available only when there would be requirement of reservation of more seats than one for the reserved categories viz. scheduled caste and scheduled tribe. According to him, there can not be any relaxation for the purpose of reservation of first seat and population of the reserved category reaching minimum percentage required as per First Schedule is the only event when reservation of one seat for the reserved category population can be claimed and made.
Learned Assistant Solicitor General placed reliance upon terminal portion of the proviso to propound that relaxation is available for first reservation, and the same reads thus:
...the figure may be rounded for the reservation of a seat or seats for which they would have otherwise been entitled.
According to learned Assistant Solicitor General, the use of singular "a seat" in the terminal clause indicates that there can be relaxation of 3% in the minimum percentage required for such first reservation, otherwise there was no necessity to refer to this singular. Advocate Shri Soman supported the submission of learned Assistant Solicitor General and he also placed reliance upon the First Schedule under said Rule 5. The First Schedule indicates that the cantonments, which have to elect 8 members, minimum required percentage is 12%, when cantonment has to elect 7 members, minimum required percentage is 14% and in the First Schedule, the second column of percentage is titled as "approximate percentage of scheduled caste or scheduled tribe population to total population". According to Advocate Shri Soman, the use of word "approximate" indicates liberal approach and, therefore, the relaxation of 3% should be available to reservation of first seat also. According to him, the Cantonments Act, 2006, is enforced since 18.12.2006 and the Rules are framed in exercise of the powers conferred by Section 31 (d) and, thus, this is the first occasion when the provisions are being used in the practical life and at the elections of the Cantonment Board. Sub-rule (1) of Rule 5 mandates reservation of seat since it begins with the clause "Seats shall be reserved for the scheduled castes and scheduled tribes...". Thus, according to Advocate Shri Soman, the proviso must be construed in favour of reservation and not against the reservation, and hence in favour of relaxation.
5. We are trying to read Sub-rule (1) and the proviso to the same in the following manner. On reading the text, as we understand, Sub-rule (1) requires reservation of seats for scheduled castes and scheduled tribes at the elections in every cantonment. The reservation of seats is to be on the basis of percentage which the population of particular reserved category bears to the total population of the cantonment. For drawing this percentage, figures of the latest census are to be relied upon. (So far as matter at hands is concerned, there is no dispute that according to latest census, population of Aurangabad cantonment is 19172 out of which 2225 are the individuals belonging to scheduled castes and, thus, percentage of scheduled caste population in the cantonment area is 11.60%). The terminal part of Sub-rule (1) reads:
...and the minimum percentage required for such reservation shall be as specified in the First Schedule.
Turning to the proviso, it is evident that it has taken into consideration the eventuality of population of reserved categories namely scheduled caste and scheduled tribe exceeding the minimum required percentage in the cantonment area. In harmony with Sub-rule (1), which requires the representation to the scheduled caste / scheduled tribe people in the Cantonment Board by reserving seats for those categories proportionate to the percentage of reserved category population with the total population of the cantonment, the proviso enables reservation of more seats when the reserved category population in the cantonment area exceeds minimum required percentage. The second half of the proviso is being interpreted by the two sides in a different manner and at the cost of repetition, we intend to reproduce this second half,
...and in determining the number of seats to be reserved for the scheduled castes or the scheduled tribes, if the scheduled caste or scheduled tribe population falls short by less than 3% of the required minimum percentage, the figure may be rounded off for the reservation of a seat or seats for which they would have otherwise been entitled.
We have earlier reproduced one clause from Sub-rule (1) and latter half of the proviso now for the purpose of taking assistance of those clauses in interpreting the sub-rule as well as proviso. We have underlined some portion for the purpose of further emphasis.
6. It must be said that controversy revolves around only one issue, that can be framed as under:
Whether relaxation of 3% in the required minimum percentage would be available in reserving first seat for scheduled caste /scheduled tribe ?
No doubt, as argued by learned Counsel Shri Soman for respondent No. 1, the rules are framed for the first time providing for reservation of seats for scheduled castes and scheduled tribes, thereby making a representative of those categories available in the Cantonment Board or Cantonment Management. It is evident that representation is to be proportionate by taking into consideration the population of reserved category and the total population and the terminal clause of Sub-rule (1), which we have reproduced hereinabove, is the condition precedent for making such representation available. The terminal clause lays down that the reservation shall be provided when the minimum percentage required for such reservation, as specified in the First Schedule, is achieved. If sub-rule begins with the clause, "seats shall be reserved", even the requirement of minimum percentage is couched with the verb "shall be". Thus, if Sub-rule (1) is read as it is, minimum percentage required appears to be condition precedent for providing such a reservation and minimum percentage required is prescribed in the First Schedule.
In our case, cantonment is going to elect members and minimum percentage required is 14% Admittedly, population of reserved category (scheduled caste) in Aurangabad cantonment area is 11.60% Advocate Shri Soman laid emphasis on the word "approximate" as contained in the title of the column of percentage. Why the word "approximate might have been used, can be explained by referring to the First Schedule. When there are 8 members to be elected, 1/8th of the population comes to 12 & half percent. The First Schedule prescribes minimum required percentage to be 12% and not 12 and half percent. When the cantonment has to elect 7 members, 1/7th of the population comes to 14.28% and not 14%. The First Schedule prescribes required minimum percentage to be 14%. Similarly, cantonment, which is to elect members, 1/6th of the population would be 16.66%. The First Schedule prescribes minimum requirement of 16% and not 16.66%. The use of word "approximate" in the title to the column of percentage prescribed can be, thus, explained. We are not in agreement with Advocate Shri Soman that this word "approximate" in any manner would support the interpretation as attributed to the proviso by learned Assistant Solicitor General that relaxation of 3% is available even for reservation of the first seat.
Learned Assistant Solicitor General has laid emphasis to the use of words "a seat" in the terminal part of the proviso and, therefore, according to him, relaxation of 3% in the minimum required percentage of population 14% is available even when the single seat is to be considered for reservation. Why the phrase "a seat or seats" might have been used can possibly be explained by the text of the proviso itself. There are two categories for which reservation is to be provided i.e. scheduled caste and scheduled tribe. In case, only one reserved category reaches the minimum required percentage, there would be question of reservation of a seat. If both the categories reach minimum required percentage, there would be requirement of reservation of one seat for each category and, thus, more seats than one. Even when we consider the issue of giving representation by reservation of more seats than one because particular reserved category population has now exceeded minimum required percentage, in that case, there would be question of reservation of one seat if the population has exceeded only nearing the double of minimum required percentage. If the population exceeds nearing the triple of the minimum required percentage, the use of phrase, "or seats" would be required because initial representation by one seat will have to be considered to be enhanced for representation by reservation of 3 seats. The use of singular "a seat" would be for increase of one more seat over and above initial reservation of a single seat. The use of clause "or seats" would be required when reservation of more than one seats over and above initial one seat would be required to be considered. Taking into consideration these eventualities by hypothesis, we are afraid, we may not be in a position to agree with learned Assistant Solicitor General that the use of word "a seat" in the terminal part of the proviso indicates that relaxation of 3% of the required minimum percentage would be available in the reservation of the first seat also.
On the contrary, we may point out that first part of the proviso and second half, which we have reproduced hereinabove, are separated by conjunction "and" and the second part begins by saying "and in determining the number of seats to be reserved for the scheduled castes". This part, with which the latter half begins, indicates that the relaxation of 3% of the required minimum percentage would be required to be considered only when the authorities are considering reservation of more seats than one for particular reserved category.
Our interpretation gets fortified by the fact that relaxation is contained only in the proviso. Had the legislators desired relaxation in reserving the first seat, the relaxation clause, which is contained in the latter half of the proviso, could have formed the terminal part of Sub-rule (1) or first proviso and present proviso, which provides for increase of number of seats with the increase of population of the reserved category, could have been second proviso.
7. Taking into consideration the manner in which we have read Sub-rule (1) and the proviso, as discussed hereinabove and more particularly the fact that Sub-rule (1) requires minimum percentage for such reservation and relaxation is contained in the proviso, which speaks about increased reservation i.e. of seats exceeding one, we are inclined to agree with the interpretation as tried to be attributed by learned Counsel for petitioner. Consequently, we must say that relaxation of 3% in the minimum required percentage of the population will not be available while considering reservation of first seat for the two reserved categories.
7. In view of the interpretation as above, the writ petition will have to be allowed in terms of prayer Clauses (B) and (C). Rule made absolute accordingly.
Certified copy expedited on request by either party.
